Pollack v. Regional School Unit 75

United States Court of Appeals
For the First Circuit
No. 17-1700
MATTHEW E. POLLACK, as next friend of B.P.;
JANE QUIRION, as next friend of B.P.,
Plaintiffs, Appellants,
v.
REGIONAL SCHOOL UNIT 75,
Defendant, Appellee,
KELLY ALLEN; TANJI JOHNSTON;
PATRICK MOORE; BRADLEY V. SMITH,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
Richard L. O'Meara, with whom Rachel W. Sears and Murray,
Plumb & Murray were on brief, for appellants.
Nathaniel A. Bessey, with whom Daniel A. Nuzzi and Brann &
Isaacson were on brief, for appellee.
March 26, 2018
KAYATTA, Circuit Judge. B.P. is a 19-year-old public
school student in Regional School Unit 75 (the "district") in
Topsham, Maine. He has been diagnosed with several disabilities,
including autism, cognitive impairment, and a variant of Landau-
Kleffner Syndrome. B.P. is nonverbal and unable to communicate
with his parents about his experiences at school. His parents
want him to carry an audio recording device at school to record
pretty much everything said in his presence. The school district's
refusal to permit the device prompted B.P.'s parents
("plaintiffs") to file this lawsuit on his behalf under, among
other things, the Americans with Disabilities Act ("ADA"). They
also commenced an administrative proceeding under the Individuals
with Disabilities Education Act ("IDEA"). As we will explain,
because the administrative tribunal found that carrying the
recording device would provide B.P. no demonstrable benefit,
plaintiffs are precluded from proving an element necessary for
them to prevail on their ADA claim. We therefore affirm the
judgment for the district.
I.
We begin by describing the basic framework of the two
principal statutes at issue in this case: the IDEA, under which
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the plaintiffs' administrative claim was adjudicated, and the ADA,
under which the claim relevant to this appeal arises.1
A.
The purpose of the IDEA is "to ensure that all children
with disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A).
A free appropriate public education, commonly referred to as a
FAPE, is defined to include "special education and related services
that . . . are provided in conformity with [a student's]
individualized education program." Id. § 1401(9)(D). "Special
education" is further defined as "specially designed
instruction . . . to meet the unique needs of a child with a
disability." Id. § 1401(29). "Related services" include
supportive services, such as audiology and interpreting services,
"as may be required to assist a child with a disability to benefit
from special education." Id. § 1401(26)(A). "Supplementary aids
and services" can also be included in a student's individualized
education program ("IEP"), see id. § 1414(d)(1)(A)(i)(IV), and are
defined as "aids, services, and other supports that are provided
in regular education classes . . . to enable children with
1
Plaintiffs also assert a claim under the Rehabilitation Act.
See 29 U.S.C. § 794. As explained below, however, we treat that
claim as coextensive with the ADA claim. See infra note 2.
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disabilities to be educated with nondisabled children to the
maximum extent appropriate," id. § 1401(33).
If parents are concerned that their child is not
receiving a FAPE, they can file a complaint with the local
educational agency. See id. § 1415(b)(6)(A). The agency then has
the opportunity to resolve the complaint at a preliminary meeting
with the parents and the relevant members of the IEP team. See
id. § 1415(f)(1)(B)(i). If that meeting fails to resolve the
complaint "to the satisfaction of the parents" within a certain
time period, id. § 1415(f)(1)(B)(ii), the parents are entitled to
have the issue decided in an impartial due process hearing, see
id. § 1415(f)(1)(A). There are two types of arguments available
to the parents at a due process hearing, both of which center on
the denial of a FAPE. They can argue that their child is being
denied a FAPE substantively, on the grounds that his or her IEP
lacks certain special education or related services. See id.
§ 1415(f)(3)(E)(i). And they can argue that their child is being
denied a FAPE due to procedural violations that, for example,
"significantly impede[] the parents' opportunity to participate in
the [IDEA] decisionmaking process." Id. § 1415(f)(3)(E)(ii)(II).
B.
Casting a much wider net than the IDEA, the ADA seeks to
eliminate discrimination against all individuals with
disabilities. See 42 U.S.C. § 12101(b)(1). Title II of the
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statute mandates that "no qualified individual with a disability
shall, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination
by any such entity."2 Id. § 12132. This protection "is
characterized as a guarantee of 'meaningful access' to government
benefits and programs." Theriault v. Flynn, 162 F.3d 46, 48 (1st
Cir. 1998) (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985));
see also Iverson v. City of Boston, 452 F.3d 94, 99 (1st Cir. 2006)
("The clear purport of Title II is to guarantee that qualified
disabled persons enjoy meaningful access to public services,
programs, and activities.").
It is undisputed that B.P. is a qualified individual
under the ADA. And for purposes of our review of the district
court's summary judgment ruling, the school district does not
dispute that to the extent B.P. did not obtain access to (or the
benefits of) the district's services, it was by reason of his
2Title II of the ADA was modeled after Section 504 of the
Rehabilitation Act, which contains very similar language barring
discrimination against individuals with disabilities by any
program or activity receiving federal financial assistance.
Because courts have interpreted the relevant parts of the two
statutes consistently, see Theriault v. Flynn, 162 F.3d 46, 48 n.3
(1st Cir. 1998), and because plaintiffs make no argument that any
difference between the two statutes is relevant to this appeal, we
focus our analysis on the ADA, see Parker v. Universidad de Puerto
Rico, 225 F.3d 1, 4 (1st Cir. 2000) (noting that courts "rely
interchangeably on decisional law" of the two statutes).
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disability. Therefore, the only contested ADA issue for purposes
of this appeal is whether, by rejecting plaintiffs' requests to
equip B.P. with a recording device, the district denied him "the
benefits of [its] services, programs, or activities" or otherwise
discriminated against him.
Such an unlawful denial occurs if a public entity refuses
to "make reasonable modifications . . . when . . . necessary to
avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or
activity." 28 C.F.R. § 35.130(b)(7)(i). As noted in Nunes v.
Massachusetts Department of Correction, 766 F.3d 136 (1st Cir.
2014), required modifications, or what we more customarily call
"accommodations,"3 include those reasonably necessary "to provide
meaningful access to a public service." Id. at 145 (internal
quotation marks omitted).
In considering failure-to-accommodate claims under the
ADA, we are also guided by duly enacted regulations implementing
the statute's anti-discrimination mandate. See A.G. v. Paradise
3 The parallel regulation under the Rehabilitation Act uses
the term "accommodation" rather than "modification," see 28 C.F.R.
§ 41.53, "but there is no material difference between the terms,"
Nunes v. Mass. Dep't of Corr., 766 F.3d 136, 145 n.6 (1st Cir.
2014). We use the term "accommodation," as we have done previously
in these types of cases. See Nunes, 766 F.3d at 145–46; Toledo v.
Sánchez, 454 F.3d 24, 32 (1st Cir. 2006); Kiman v. N.H. Dep't of
Corrs., 451 F.3d 274, 283 (1st Cir. 2006).
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Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir.
2016). One such regulation promulgated by the Department of
Justice is relevant here. The so-called effective communications
regulation requires public entities "to ensure that communications
with applicants, participants, members of the public, and
companions with disabilities are as effective as communications
with others." 28 C.F.R. § 35.160(a)(1). To achieve this, "public
entit[ies] shall furnish appropriate auxiliary aids and services
where necessary to afford individuals with disabilities . . . an
equal opportunity to participate in, and enjoy the benefits of, a
service, program, or activity of a public entity." Id.
§ 35.160(b)(1); see also K.M. ex rel. Bright v. Tustin Unified
Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013) (noting that "we
are guided by the specific standards of the Title II effective
communications regulation" because "the 'meaningful access'
standard incorporates rather than supersedes applicable
interpretive regulations").
A plaintiff pursuing an accommodation-based claim of
discrimination under the ADA must in the first instance make
several showings, one of which is the "effectiveness" of the
proposed accommodation. Reed v. LePage Bakeries, Inc., 244 F.3d
254, 259 (1st Cir. 2001) (explaining that the plaintiff has the
burden to show that the proposed accommodation is effective and
reasonable). In other words, the accommodation must provide a
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benefit in the form of increased access to a public service. See
Nunes, 766 F.3d at 145. Nothing in the effective communications
regulation obviates the need to show that a requested accommodation
will provide some such benefit. To the contrary, the regulation
only requires public entities to provide auxiliary communication
aids and services "where necessary to afford individuals with
disabilities . . . an equal opportunity to participate in, and
enjoy the benefits of, [the entity's] service, program, or
activity." 28 C.F.R. § 35.160(b)(1) (emphasis added). And
although the regulation directs that "[i]n determining what types
of auxiliary aids and services are necessary, a public entity shall
give primary consideration to the requests of individuals with
disabilities," id. § 35.160(b)(2), the requested aid or service
must still be beneficial in the first instance. See United States
Dep'ts of Educ. and Justice, Frequently Asked Questions on
Effective Communication for Students with Hearing, Vision, or
Speech Disabilities in Public Elementary and Secondary Schools 8–
9, https://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-
effective-communication-201411.pdf.
II.
We next recite the relevant travel of plaintiffs' multi-
track pursuit of their claims under the ADA and IDEA. Plaintiffs
sued the district and several school officials in March 2013,
alleging violations of the First Amendment, the ADA, the
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Rehabilitation Act, and the IDEA. In May 2014, plaintiffs filed
a second suit against the district and several other school
officials, alleging that the district had "continued the pattern"
of violating their rights under those statutes. The two cases
were consolidated in the district court and in due course the
parties filed cross-motions for summary judgment.
The district argued that plaintiffs had failed to
exhaust their administrative remedies under the IDEA, which barred
their claims under the First Amendment, the ADA, and the
Rehabilitation Act. In response, while the parties were awaiting
a decision on the summary judgment motions, plaintiffs began the
process of exhausting their IDEA remedies by requesting a due
process hearing from the Maine Department of Education in early
January 2016.4 In that request, plaintiffs asserted numerous
violations of the IDEA and sought, among other things, a finding
that the recording device was necessary to provide B.P. with a
FAPE.5
4
This was the fifth due process hearing plaintiffs requested.
Two previous requests led to hearings and the other two were
withdrawn. Because we do not rely on the prior hearings in
resolving this appeal, we omit any discussion of them.
5
B.P.'s father, Matthew Pollack, requested the 2016 IDEA
hearing. B.P.'s mother, Jane Quirion, was present for most of the
hearing and testified at it, but was not a party to the proceeding.
However, because there is no dispute that B.P.'s parents are in
privity for issue preclusion purposes and that they join here to
sue solely as next friend of B.P., we use the term "parents" and
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Shortly after plaintiffs requested the due process
hearing, the district court entered summary judgment for the
district on plaintiffs' remaining ADA, Rehabilitation Act, and
First Amendment claims. It agreed with the district and found
plaintiffs' claims barred for failure to have fully exhausted all
remedies under the IDEA. Plaintiffs appealed that determination
to this court.
While plaintiffs' appeal to this court was pending, an
IDEA hearing officer from the Maine Department of Education moved
forward on their hearing request. The hearing officer held a
three-day hearing in March 2016 and, shortly thereafter, issued a
decision. The decision rejected plaintiffs' position that the
recording device was required under the IDEA. In so ruling, the
hearing officer made the following findings, in relevant part:
No doubt it must be difficult to send a
child who has a limited ability to communicate
into the care of others. It requires a certain
level of trust. The Student has attended
school in the District for 12 years without a
recording device, and throughout his entire
educational career, he has been happy, has
loved school, and has made continuous and
significant progress. There have been only a
handful of incidents of concern to the
Parents, and the Parents have stated under
oath that they felt the Student was safe at
school. The need for a recording device is
therefore not a safety issue. . . . Everyone,
including the Parents, agrees that the Student
has been making good progress in his
"plaintiffs" interchangeably when referring to the IDEA proceeding
and this case.
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educational program. That is precisely what
FAPE requires. The Student is receiving FAPE.
From a practical perspective, it is
impossible for the District staff to report on
every aspect of the Student's day, and it is
not necessary. In the Parent's closing
argument, he lists some examples where
information should have been included in the
daily log but wasn't, and most were essential
in his eyes but not in mine or the other
adjudicators who have denied his attempts to
send the Student to school with a recording
device.
It is unnecessary for the Student to wear
a recording device to benefit educationally.
As noted above, there is no dispute that the
student is already receiving FAPE without the
recording device.
There is [a] wealth of evidence from both
educators and the parent of another child with
autism (Parent B) that the recording device
actually would be disruptive and detrimental
to the education of the Student and would
interfere with the learning process. It is
also understandable, given the Parents'
unusually high level of scrutiny over the
actions of the District, that District staff
would be concerned about how the Parents would
use the recordings, and that things could be
taken out of context from a recording of a
nonverbal child.
Based upon the evidence, I conclude that
allowing the Student to wear a device that
would record his day at school, either by
audio or video means, would interfere with his
ability to receive FAPE. The Parent was
unable to state how or whether the Parents
would use the recordings. There is simply no
demonstrable benefit, and there is the
potential for harm.
In conclusion, the Parent has failed to
provide any evidence that the Student is not
receiving FAPE and no evidence to support the
assertion that wearing a recording device
could benefit him educationally.
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Issuance of the hearing officer's ruling resolving
plaintiffs' IDEA claims caused this court to dismiss the original
appeal of the district court's exhaustion ruling as moot and to
vacate the judgment of dismissal, since, if there were an
exhaustion requirement, plaintiffs had met it. See Pollack v.
Reg'l Sch. Unit 75, 660 F. App'x 1, 2–3 (1st Cir. 2016)
(unpublished).6 On remand, the district court held that the IDEA
hearing officer's un-appealed findings collaterally precluded
plaintiffs from establishing that the recording device was a
required accommodation under the ADA and the Rehabilitation Act.
The district court also found, on summary judgment, that the
effective communications regulation did not apply to
communications between B.P. and his parents. After plaintiffs
then tried their First Amendment claims to a jury and lost, final
judgment entered. Plaintiffs appealed only the dismissal of their
disability discrimination claims against the district.
III.
As we described above, the IDEA hearing officer found
that allowing B.P. to attend school equipped with a recording
device would provide "no demonstrable benefit." So the question
6 This order was issued prior to the Supreme Court's decision
in Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743 (2017), which held
that a plaintiff is only required to exhaust IDEA remedies when
his "lawsuit seeks relief for the denial of a free appropriate
public education." Id. at 754.
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arises: To what extent, if any, does that factual finding preclude
B.P. from establishing an essential element of his ADA claim; i.e.,
that the recording device would in fact provide a benefit to him
in the form of greater access to the services that the district
provides to its students? See Nunes, 766 F.3d at 145.
The parties agree, and we therefore assume, that we
afford the findings at issue, which were the product of an
adjudicatory proceeding in a Maine administrative agency, "the
same preclusive effect to which [they] would be entitled in the
State's courts." Univ. of Tenn. v. Elliott, 478 U.S. 788, 799
(1986); see also FPL Energy Me. Hydro LLC v. FERC, 551 F.3d 58, 63
(1st Cir. 2008) ("A federal court is generally bound under res
judicata to give the same preclusive effect to a state court
judgment as would be given to it by a local court within that
state."); Dertz v. City of Chi., No. 94 C 542, 1997 WL 85169, at
*10 (N.D. Ill. Feb. 24, 1997) (holding that the doctrine of issue
preclusion applies to state administrative findings for claims
brought under Title II of the ADA). Maine courts apply issue
preclusion, also known as collateral estoppel, "to administrative
proceedings as well as to court proceedings." Portland Water Dist.
v. Town of Standish, 940 A.2d 1097, 1100 (Me. 2008). Under Maine
law, issue preclusion applies when "the identical issue
necessarily was determined by a prior final judgment, and the party
estopped had a fair opportunity and incentive to litigate the issue
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in the prior proceeding." Mutual Fire Ins. Co. v. Richardson, 640
A.2d 205, 208 (Me. 1994) (quoting State Mutual Ins. Co. v. Bragg,
589 A.2d 35, 37 (Me. 1991)). The application of issue preclusion
"is determined on a case-by-case basis," id., and is "meant to
serve the ends of justice not to subvert them," id. (quoting
Pattershall v. Jenness, 485 A.2d 980, 983 (Me. 1984)).
Plaintiffs also concede that the un-appealed decision of
the IDEA hearing officer constitutes a final judgment and that
they had a full and fair opportunity to litigate the issues
necessarily decided in that proceeding. They argue, instead, that:
(A) the pertinent factual findings of the hearing officer are not
identical to the factual issues germane to their ADA claim, (B) the
findings were, in any event, not necessary to the agency's
judgment, (C) a difference in who had the burden of proof in the
two proceedings makes preclusion inapplicable, and (D) events
occurring after the agency judgment entered provide a basis for
side-stepping the impact of that judgment in this case. Reviewing
the district court's application of issue preclusion de novo, see
Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 25 (1st Cir.
2017), we address each argument in turn.
A. Identical Issue
Under Maine law, issue preclusion "prevents the
reopening in a second action of an issue of fact actually litigated
and decided in an earlier case." Town of North Berwick v. Jones,
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534 A.2d 667, 669-70 (Me. 1987) (internal quotation marks omitted).
Plaintiffs argue that, without reopening any issue of fact found
by the hearing officer, they can still demonstrate that allowing
B.P. to wear a recording device would be effective in providing
him meaningful access to the benefits that the district offers its
students. Specifically, plaintiffs argue that we should read the
hearing officer's findings as trained solely on an absence of
educational benefits to B.P. So limited, plaintiffs contend, the
findings are not a bar to proving that the device would provide
B.P. greater access to other benefits stemming from keeping his
parents informed about his school day so that they can better
advocate for him, more like the parents of his non-disabled peers.
While we are not sure we see the distinction plaintiffs would have
us draw (especially since plaintiffs themselves repeatedly portray
the benefit of improved communication as facilitating their
ability to obtain a better education for B.P.), the simple fact is
that plaintiffs never developed this argument in the district
court. The argument is therefore waived. See Teamsters,
Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any
principle is settled in this circuit, it is that, absent the most
extraordinary circumstances, legal theories not raised squarely in
the lower court cannot be broached for the first time on appeal.").
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Plaintiffs did argue below that the right to a FAPE is
not necessarily the same as the right to an accommodation under
the ADA. We agree. See Fry v. Napoleon Cmty. Sch., 137 S. Ct.
743, 755–56 (2017) (noting that the ADA and the IDEA have "diverse
means and ends," even though "the same conduct might violate" both
statutes). This argument, though, overlooks the fact that issue
preclusion applies not only to determinations of law, such as
whether the IDEA or the ADA has been violated, but also to
determinations of fact made in resolving issues of law. See Godsoe
v. Godsoe, 995 A.2d 232, 237 (Me. 2010) ("A party may be
collaterally estopped from relitigating a factual issue even if
the two proceedings offer substantially different remedies or the
second proceeding is based on a different claim than the first.");
see also Restatement (Second) of Judgments § 27 cmt. c (1982) ("An
issue on which relitigation is foreclosed may be one of evidentiary
fact, of 'ultimate fact' (i.e., the application of law to fact),
or of law."). In short, when we consider issue preclusion rather
than claim preclusion, it is very often the case that the ultimate
question in the earlier proceeding will differ from the ultimate
question in the later proceeding. See, e.g., Napier v. Town of
Windham, 187 F.3d 177, 184–85 (1st Cir. 1999) (applying Maine issue
preclusion principles and giving preclusive effect to findings
from a state criminal case in a subsequent federal civil rights
suit); Gray v. TD Bank, N.A., 45 A.3d 735, 737–38, 742 (Me. 2012)
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(giving preclusive effect to findings from a probate proceeding
brought to determine whether certain funds held by a bank were the
property of the estate in a subsequent breach of contract case
brought against the bank). That difference does not mean that a
predicate factual question in each case cannot be identical. See
Gray, 45 A.3d at 742 ("[T]he factual question at the center of
Gray's breach of contract claim against the Bank is identical to
the question adjudicated and determined in the Probate Court . . .
." (emphasis added)). And here, plaintiffs neither dispute that
the question whether the recording device would benefit B.P. is at
"the center of" their ADA claim, nor offer any properly preserved
argument that the claimed ADA benefit is any different from the
educational benefit that the hearing officer found was lacking
under the IDEA.
B. Necessary to the Judgment
Plaintiffs' principal argument is that the hearing
officer's finding of no demonstrable benefit, even if identical to
an issue upon which they need to prevail in order to successfully
make out a reasonable accommodation claim, was not necessary to
the hearing officer's final decision. They advance two versions
of this argument: first, that the hearing officer's finding of
"no demonstrable benefit" was an unnecessary alternative ground
for her decision, and second, even if considering the effectiveness
of the device was necessary, there was no need for the hearing
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officer to find that the device offered no benefit whatsoever. We
address each argument in turn.
1.
The hearing officer wrote that "[e]veryone, including
the Parents, agrees that the Student has been making good progress
in his educational program." She went on to state: "That is
precisely what FAPE requires. The Student is receiving FAPE." As
plaintiffs see it, the hearing officer could have stopped there.
Indeed, by plaintiffs' most recently advanced logic, even if the
hearing officer had concluded that the recording device would be
quite effective and beneficial, she would have been required to
rule against the parents if B.P. was nevertheless already receiving
a FAPE. And, plaintiffs say, the hearing officer's finding of no
demonstrable benefit could not be appealed because the judgment
could stand independently on the finding that B.P. was receiving
a FAPE. See Restatement, supra, § 28 cmt. a ("[T]he availability
of review for the correction of errors has become critical to the
application of preclusion doctrine.").
Read as a whole, though, the hearing officer's decision
does not invite us to construe the "no demonstrable benefit"
finding as only an alternative ground for the decision. The ruling
never labels the finding as an unnecessary or alternative part of
its reasoning. To the contrary, the hearing officer's statement
that B.P. is "receiving FAPE" follows -- and seems to be based on
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-- a discussion of events belying any need for the recording
device. Additionally, the decision twice labels its finding
regarding the efficacy of the device as its conclusion.7 In this
manner, the text invites the reader to see the finding of "no
demonstrable benefit" as reinforcement for the legal conclusion
that B.P. was receiving a FAPE, rather than as an unnecessary
alternative basis for the decision's ultimate conclusion that the
device was not required under the IDEA.
The nature of the hearing that gave rise to the finding
supports reading the hearing officer's conclusion as standing on
two reinforcing -- rather than alternative -- grounds. Regarding
the recording device claim, the proceeding was structured to
determine, in the words of the district court's initial summary
judgment ruling requiring exhaustion under the IDEA, "whether
B.P.'s IEP should include his use of supplementary aids to properly
protect B.P. at school or allow B.P. to effectively communicate
and advocate for himself so that he could best work towards his
educational goals." Not surprisingly, therefore, much of the
hearing focused on whether and to what extent the recording device
would benefit B.P. by allowing him to best pursue his educational
7 The decision expressly "conclude[s]" that the device would
be to B.P.'s detriment by interfering with his ability to receive
a FAPE (i.e., would interfere with his education). It also
includes the finding that the parents provided "no evidence to
support the assertion that wearing a recording device could benefit
[B.P.] educationally" as part of its "conclusion."
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goals. All parties, especially plaintiffs, treated this as a
central question in the IDEA proceeding and they therefore made
their best case on this issue. In particular, plaintiffs
emphasized that B.P. required the device for safety reasons, to
"protect himself," as well as to advocate for himself through his
parents. At the hearing, B.P.'s father testified that without the
device, "there is no way for [B.P.] to tell us what happens . . .
and, therefore, for him to . . . advocate for himself or get our
assistance in advocating for him." B.P.'s mother testified
similarly. Plaintiffs maintained this position in the written
closings they submitted to the hearing officer. Plaintiffs also
claimed that the device was necessary to allow them to reinforce
at home the programming provided at school. In response, the
district elicited testimony from its staff that the device would
not support B.P.'s education and could in fact hinder it by
increasing his isolation and making staff and his peers
uncomfortable. Given this extensive and predominant focus on the
potential benefits of the recording device, we decline plaintiffs'
invitation to presume that the hearing officer's finding that B.P.
was receiving a FAPE would have remained unchanged had the parents
convinced the officer that B.P. would indeed benefit from wearing
the device. We find additional support for our conclusion in the
fact that the hearing officer, in her ruling, expressed puzzlement
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that the parents failed to explain precisely how they would use
the recordings.8
Substantive IDEA law buttresses our reading that the
hearing officer's "no demonstrable benefit" finding was not an
unnecessary addendum, but rather served as an important
reinforcement of the decision that B.P. was already receiving a
FAPE. It is true that a school need not maximize the benefits
received by a student in order to provide a FAPE. See Endrew F.
ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988,
1001 (2017) (rejecting an argument that a FAPE must provide
students with disabilities "substantially equal" opportunities to
those afforded students without disabilities). At the same time,
though, the IDEA establishes no objective tool to measure how much
of an available benefit the school must provide. See id. at 1000
n.2 ("We declined to hold in Rowley, and do not hold today, that
'every handicapped child who is advancing from grade to grade . . .
is automatically receiving a [FAPE].'" (alterations in original)
(quoting Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist.,
Westchester Cty. v. Rowley, 458 U.S. 176, 203 n.5 (1982))).
Rather, the IDEA requires a hearing officer to pay heed to the
precise circumstances confronting an individual student. See id.
at 999 ("To meet its substantive obligation under the IDEA, a
8
In other words, what exactly were the parents going to do
with the four or five hours of recordings each evening?
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school must offer an IEP reasonably calculated to enable a child
to make progress appropriate in light of the child's
circumstances." (emphasis added)). The statute directly calls for
consideration of the "unique needs" of each child, 20 U.S.C.
§ 1400(d)(1)(A), and of the possibility that "supplementary aids"
may need to be included in a child's IEP, id.
§ 1414(d)(1)(A)(i)(IV). A careful hearing examiner confronted
with the parents' claim that a recording device would meaningfully
benefit B.P. in a manner relevant to his receipt of a FAPE might
well have thought it important -- as plaintiffs themselves
apparently did -- to assess all the potential benefits of the
device before finally reaching a conclusion that B.P. was receiving
a FAPE.
The distinction between a substantive deprivation of a
FAPE and a procedural deprivation of a FAPE may also have accounted
for the hearing officer's assessment of the extent to which the
device would benefit B.P. A substantive inquiry focuses on the
"proper content of an IEP." See Lessard v. Wilton-Lyndeborough
Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). A procedural
inquiry instead focuses on the parents' ability to participate
meaningfully in the IDEA process. See id. (citing the right of
parents to be part of the IEP team as an example of the IDEA's
procedural requirements). Our review of the IDEA due process
record suggests that there was a fair amount of confusion, or at
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the very least an evolution throughout the proceedings, regarding
whether the hearing officer was adjudicating a substantive
challenge or a procedural one, or both. Compare 20 U.S.C.
§ 1415(f)(3)(E)(i) (substantive) with id. § 1415(f)(3)(E)(ii)
(procedural). Although the hearing officer initially believed
that she was adjudicating a substantive challenge, she ultimately
framed the issue in her opinion in the words of a procedural
challenge. And between plaintiffs' first closing argument and
their reply closing, they seem to have subtly changed from
emphasizing the substantive nature of their claim (that B.P. was
substantively deprived of a FAPE because he lacked the ability to
protect himself and advocate for himself) to emphasizing its
procedural nature (that without the device, the parents were
deprived of their procedural right to participate in the IDEA
decision-making process, which in turn deprived B.P. of the ability
to protect himself and advocate for himself). In light of this
apparent evolution, the hearing officer's analysis (and her
multiple conclusions) can reasonably be read as inquiring into
both whether B.P. was substantively deprived of a FAPE and whether
he was procedurally so deprived. So viewed, the "no demonstrable
benefit" finding may have been necessary to rejecting the IDEA
claim even if it was not necessary to finding that B.P. was not
substantively deprived of a FAPE.
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For these reasons, and for purposes of considering the
preclusive effects of the hearing officer's findings, we are not
persuaded that an assessment of the efficacy of the recording
device was unnecessary to the FAPE proceeding. See Manganella v.
Evanston Ins. Co., 700 F.3d 585, 593–94 (1st Cir. 2012) (rejecting
plaintiff's argument against issue preclusion because "although
[plaintiff] argues here that the arbitrators could have just
assumed the truth of the harassment allegations [and reached the
same result], he did not ask them to do so" but rather "vigorously
litigated" their truth); Restatement, supra, § 27 cmt. j ("The
appropriate question, then, is whether the issue was actually
recognized by the parties as important and by the trier as
necessary to the first judgment."). Moreover, a rationale we have
cited for the requirement that a finding be necessary to the
judgment -- that the parties do not have a strong incentive to
litigate a peripheral issue, see Commercial Assocs. v. Tilcon
Gammino, Inc., 998 F.2d 1092, 1097 (1st Cir. 1993) -- shrinks
considerably where the parties have vigorously litigated the issue
before a tribunal that to all indications viewed the issue as
important. Here, the parties and the hearing officer had ample
cause to regard a full assessment of the potential benefits of the
recording device as relevant to the determination of whether B.P.
was receiving a FAPE (and thus as necessary to the overall agency
judgment), and appear to have acted accordingly.
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Plaintiffs' argument that they had no incentive to
appeal the hearing officer's ruling therefore lacks the full force
it might have had were it clear that the finding that B.P. was
receiving a FAPE stood entirely on its own without any reliance on
the "no demonstrable benefit" finding. If a reviewing court agreed
with our reading of the hearing officer's decision, then it would
have entertained an appeal of the latter finding. And if it
disagreed with our reading, plaintiffs' argument on preclusion
would have been substantially strengthened. In sum, plaintiffs
likely had ample incentive to appeal the hearing officer's judgment
if they felt that the "no demonstrable benefit" finding was plainly
wrong.
2.
This brings us to plaintiffs' closely-related fallback
theory: that, even assuming some assessment of the efficacy of
the recording device was necessary to the judgment, the hearing
officer did not need to decide that the device actually lacked any
benefit at all. Rather, all the officer needed to find on this
score, say plaintiffs, was that the device was not so effective
and important as to be necessary for a FAPE; her additional finding
that the device would provide no benefit at all, much less that it
would interfere with the provision of a FAPE and could
affirmatively cause harm, was simply "not the standard" and was
therefore unnecessary to the judgment.
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In rejecting this argument, we do not reject plaintiffs'
contention that, in theory, the hearing officer could have
concluded that the recording device would provide some benefit,
yet not enough that its provision was necessary to provide B.P.
with a FAPE, and still have reached the same result. Cf. K.M. ex
rel. Bright, 725 F.3d at 1101 ("[T]he IDEA does not require schools
to provide equal educational opportunities to all students."
(internal quotation marks omitted)); Endrew F., 137 S. Ct. at 1001.
But we resist the temptation to "speculate that a prior decision
could have been rested on narrower grounds than those actually
chosen." Wright & Miller, supra, § 4421. As we have previously
observed, "a factual determination is not inherently untrustworthy
just because the result could have been achieved by a different,
shorter and more efficient route." Commercial Assocs., 998 F.2d
at 1097.
Plaintiffs cite no authority for their argument to the
contrary. The Restatement is silent on the matter, despite a
thorough discussion of the preclusive effects of "evidentiary
facts," i.e., those that are not ultimate facts. Restatement,
supra, § 27 cmt. j; id. § 27 ill. 17. Our survey of Maine case
law has revealed no hint that Maine courts would embrace a rule
that issue preclusion applies only where a finding on an issue
necessary to the judgment is the narrowest possible finding on
that question. In fact, several Maine cases suggest the opposite.
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See Perry v. H.O. Perry & Son Co., 711 A.2d 1303, 1305 (Me. 1998)
(giving preclusive effect to a finding that "[t]he record is devoid
of any evidence" of detrimental reliance); Button v. Peoples
Heritage Sav. Bank, 666 A.2d 120, 121, 123 (Me. 1995) (giving
preclusive effect to a finding that "all of [decedent's] actions
in arranging her financial affairs were voluntary," where the only
relevant action was the redemption of a particular certificate of
deposit (internal quotation marks omitted)). So, too, does
precedent applying the preclusion principles of other states. See
Gambino v. Koonce, 757 F.3d 604, 609–10 (7th Cir. 2014) (rejecting
appellant's argument that the first court's finding of fraudulent
intent was not necessary to the judgment because its decision on
liability could have rested on a finding of recklessness and its
award of punitive damages on a finding of gross negligence); cf.
Stoehr v. Mohamed, 244 F.3d 206, 209 (1st Cir. 2001) (per curiam)
(rejecting an argument against issue preclusion on the grounds
that the first court's finding of fraud was not essential because
liability under Mass. Gen. Laws 93A need only be premised on unfair
conduct). But cf. NLRB v. Thalbo Corp., 171 F.3d 102, 111 (2d
Cir. 1999) (noting that, where the magistrate judge believed that
a Title VII claimant was required to seek other work
"aggressively," a finding that the claimant did not search for
other jobs at all would have been "superfluous").
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In assessing the implications of the foregoing
discussion of the necessity requirement in this case, we are guided
by Maine's recognition that "collateral estoppel is, after all, a
flexible doctrine," Pattershall, 485 A.2d at 983 (quoting Hossler
v. Barry, 403 A.2d 762, 769 (Me. 1979)), and its understanding
that the doctrine "is 'meant to serve the ends of justice not to
subvert them,'" Mutual Fire, 640 A.2d at 208 (quoting Pattershall,
485 A.2d at 983). We have previously taken a pragmatic approach
in applying issue preclusion principles. See Miller v. Nichols,
586 F.3d 53, 62 (1st Cir. 2009) (applying Maine law and rejecting
an argument against issue preclusion in part because it
"ignores . . . what actually happened in the state court
proceedings"); Commercial Assocs., 998 F.2d at 1096 (noting that
Rhode Island courts "allow themselves a good deal of latitude in
applying the rule [of collateral estoppel], observing the spirit
of it rather than the letter" (alteration in original) (quoting
Hill v. Bain, 23 A. 44, 44 (R.I. 1885))). We do the same here,
and decline to adopt the unbending application of the necessity
requirement urged by plaintiffs. The parties to the prior
proceeding litigated a factual issue as if it were the essential
issue in the case, the applicable law provided no clear sign that
resolution of the issue was a frolic, and there is nothing about
the substance of the resulting finding to cause one to think that
it was not the product of a seriously undertaken decision by the
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adjudicator. In this context, we conclude that the purposes
underlying the necessity requirement are adequately satisfied.
C. Burden of Proof
We turn now to plaintiffs' third argument: that, under
Maine law, when the party against whom preclusion is sought bears
the burden of proof in the first proceeding but not in the second,
findings of fact in the first proceeding are often not given
preclusive effect in the second proceeding. See Crawford v. Allied
Container Corp., 561 A.2d 1027, 1028 (Me. 1989); see also
Restatement, supra, § 28(4). But that is not the case here.
Rather, as ADA claimants, plaintiffs must carry in this second
proceeding the burden of proving that the proposed accommodation
-- the recording device -- will be beneficial, i.e., will provide
some increased access to a public service. See Reed, 244 F.3d at
258–59. Similarly, they bore the burden in the IDEA proceeding of
showing that the device was necessary for B.P. to receive a FAPE.
In short, on de novo review we find that there was no relevant
shifting of the burden.
D. New Evidence of Pretext
Plaintiffs argue, finally, that evidence that has come
to light since the IDEA hearing suggests that the district's
refusal to allow the recording device was pretextual. This
evidence, plaintiffs contend, creates an issue of material fact
"concerning the validity of the very finding the district court
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deemed preclusive." Plaintiffs point specifically to evidence
that the district's special education director agreed to allow
them to view video recordings of B.P.'s speech-language therapy
only if they promised not to use the recordings as a basis for a
complaint against the therapist. They also rely on evidence that
the director prohibited them from visiting B.P.'s school
unannounced because they were solely focused on seeking out wrongs
by school staff.
Even if, as plaintiffs suggest, the new evidence
establishes an issue of material fact as to whether the district's
refusal to allow the device was pretextual, it has no impact on
this case. Pretext is only relevant to the final stage of the ADA
analysis. Once the plaintiff has shown that the accommodation
sought is reasonable and effective and the defendant has claimed
undue hardship, then the plaintiff has the opportunity to prove
that the defendant's claimed hardship is pretextual. See Wynne v.
Tufts Univ. Sch. of Med., 976 F.2d 791, 796 (1st Cir. 1992)
(explaining that, when pretext is at issue, plaintiff must produce
specific facts that undercut the defendant's position). Here, the
analysis does not even get past the very first step. Because of
the hearing officer's factual findings, plaintiffs cannot make the
preliminary showing that the device would benefit B.P. in some
manner. And because plaintiffs do not dispute that proving that
the device would benefit B.P. is essential to sustaining their
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reasonable accommodation claim, they cannot prevail.9 No amount
of pretext evidence can change that result.
IV.
For the foregoing reasons, we affirm.
9 Because we find that plaintiffs' reasonable accommodation
claim is precluded by the 2016 IDEA due process hearing, we need
not address the district's alternative arguments that the claim is
barred by the preclusive effects of the earlier 2012 due process
hearing or by the jury's findings in the First Amendment trial.
Similarly, we need not address plaintiffs' contention that
communications between them and B.P. fall within the scope of the
effective communications regulation. Even if they do, plaintiffs
cannot show that the recording device is "necessary" for purposes
of the regulation, due to the hearing officer's finding that it
offered "no demonstrable benefit."
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