Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 1 of 29
ADVISE,MOTREF
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:14−cv−30116−MGM

S.S. et al v. City of Springfield et al Assigned to: Judge Mark G. Mastroianni Case in other court: USCA − First Circuit, 18−01778
USCA − First Circuit, 18−01813
USCA − First Circuit, 18−01867
USCA − First Circuit, 18−01976 Cause: 42:1218(2) Americans with Disabilities Act
Intervenor Plaintiff

Date Filed: 06/27/2014 Date Terminated: 09/25/2018 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

S B

represented by Elizabeth M. Bresnahan

Morgan, Lewis & Bockius LLP

One Federal Street

Boston, MA 02110

617−951−8638

Email: elizabeth.bresnahan@morganlewis.com

ATTORNEY TO BE NOTICED

Intervenor Plaintiff M. W.

represented by Elizabeth M. Bresnahan (See above for address) ATTORNEY TO BE NOTICED

Matthew T. Bohenek Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 617−951−8945 Email: matthew.bohenek@morganlewis.com ATTORNEY TO BE NOTICED

Plaintiff
S. S. a minor, by his mother, S.Y., on behalf of himself and other similarly situated students. TERMINATED: 12/01/2017

represented by Alison Barkoff Center for Public Representation 1825 K Street, N.W., Suite 60 Washington, DC 20006 202−854−1270 Email: Abarkoff@cpr−ma.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Carol E. Head Attorney General's Office 18th Floor One Ashburton Place Boston, MA 02108 617−963−2690 Email: carol.head@state.ma.us TERMINATED: 02/19/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth M. Bresnahan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Jacqueline S. Delbasty Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 617−951−8644 Email: jacqueline.delbasty@morganlewis.com TERMINATED: 03/22/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fleischner Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5211 Email: rfleischner@cpr−ma.org TERMINATED: 10/04/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. McDonnell Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 617−951−8507 Fax: 617−951−8736 Email: robert.mcdonnell@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra J. Staub Center for Public Representation 22 Green Street 22 Green Street Northampton, MA 01060 United Sta 413−586−6024 Fax: 413−586−5711 Email: sstaub@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah A Dorfman The Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586−6024 Email: ddorfman@cpr−ma.org ATTORNEY TO BE NOTICED
Ira A. Burnim Judge Bazelon Center for Mental Health Law 1101 15th St NW Suite 1212 Washington, DC 20005 202−467−5730 Fax: 202−223−0409 Email: irabster@gmail.com ATTORNEY TO BE NOTICED
Jeff Goldman Morgan, Lewis & Bockius LLP

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 3 of 29

One Federal Street Boston, MA 02110 617−951−8941 Email: jeff.goldman@morganlewis.com ATTORNEY TO BE NOTICED

Jennifer Mathis Bazelon Center for Mental Health Law Suite 1212 1101 15th Street, NW Washington, DC 20005 (202) 467−5730 Email: jenniferm@bazelon.org PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew T. Bohenek (See above for address) ATTORNEY TO BE NOTICED

Michael D. Blanchard Morgan, Lewis & Bockius, LLP (CT) One State Street Hartford, CT 06103 860−240−2700 Fax: 860−240−2818 Email: michael.blanchard@morganlewis.com ATTORNEY TO BE NOTICED

Samuel R. Miller The Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586−6024 Email: smiller@cpr−ma.org ATTORNEY TO BE NOTICED

Plaintiff Parent/Professional Advocacy League

represented by Alison Barkoff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Carol E. Head (See above for address) TERMINATED: 02/19/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth M. Bresnahan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline S. Delbasty (See above for address) TERMINATED: 03/22/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D. Fleischner (See above for address) TERMINATED: 10/04/2017

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert E. McDonnell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra J. Staub (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah A Dorfman (See above for address) ATTORNEY TO BE NOTICED

Ira A. Burnim (See above for address) ATTORNEY TO BE NOTICED

Jeff Goldman (See above for address) ATTORNEY TO BE NOTICED

Jennifer Mathis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew T. Bohenek (See above for address) ATTORNEY TO BE NOTICED

Michael D. Blanchard (See above for address) ATTORNEY TO BE NOTICED

Samuel R. Miller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Disability Law Center, Inc.

represented by Alison Barkoff Center for Public Representation 1825 K Street, N.W. Suite 600 Washington, DC 20006 202−854−1270 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Carol E. Head (See above for address) TERMINATED: 02/19/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline S. Delbasty (See above for address) TERMINATED: 03/22/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Matthew T. Bohenek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra J. Staub (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth M. Bresnahan (See above for address) ATTORNEY TO BE NOTICED
Jeff Goldman (See above for address) ATTORNEY TO BE NOTICED
Michael D. Blanchard (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
City of Springfield Massachusetts

represented by Edward M. Pikula Attorney Edward M. Pikula 1350 Main Street Suite 312 Springfield, MA 01103 413−531−5004 Fax: 413−294−1079 Email: attyemp@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony I. Wilson City of Springfield 36 Court Street Springfield, MA 01103 413−219−0365 Email: tony.ivan@gmail.com TERMINATED: 02/09/2016 ATTORNEY TO BE NOTICED
Lisa C. deSousa Law Department, City of Springfield 1600 East Columbus Ave. Springfield, MA 01103 413−886−5206 Email: ldesousa@springfieldcityhall.com ATTORNEY TO BE NOTICED
Mary J. Kennedy Bulkley, Richardson & Gelinas BayBank Tower 1500 Main Street Suite 2700 P.O. Box 15507 Springfield, MA 01115−5507 413−781−2820 Fax: 413−272−6803 Email: mkennedy@bulkley.com ATTORNEY TO BE NOTICED

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Defendant Springfield Public Schools
Defendant Domenic Sarno in his official capacity as Mayor of City of Springfield TERMINATED: 11/19/2015

Mary Ellen MacDonald Bulkley Richardson & Gelinas 1500 Main Street Suite 2700 PO Box 15507 Springfield, MA 01115−5507 617−368−2503 Fax: 413−272−6806 Email: mmacdonald@bulkley.com ATTORNEY TO BE NOTICED
Melinda M. Phelps Bulkley, Richardson & Gelinas 1500 Main Street Suite 2700 Springfield, MA 01115−5507 413−781−2820 Fax: 413−272−6803 Email: mphelps@bulkley.com ATTORNEY TO BE NOTICED
Stephen L. Holstrom Connell & McCarthy 285 Littleton Road Westford, MA 01886 978−729−9437 Fax: 860−548−2744 Email: sholstrom@bulkley.com ATTORNEY TO BE NOTICED
represented by Edward M. Pikula (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary J. Kennedy (See above for address) ATTORNEY TO BE NOTICED
Melinda M. Phelps (See above for address) ATTORNEY TO BE NOTICED
Stephen L. Holstrom (See above for address) ATTORNEY TO BE NOTICED
represented by Edward M. Pikula (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony I. Wilson (See above for address) TERMINATED: 02/09/2016 ATTORNEY TO BE NOTICED
Melinda M. Phelps (See above for address) ATTORNEY TO BE NOTICED

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Defendant Superintendent Daniel J. Warwick in his official capacity as Superintendent of Springfield Public Schools, TERMINATED: 11/19/2015
ADR Provider Kenneth P. Neiman TERMINATED: 06/14/2018
Interested Party United States of America

represented by Edward M. Pikula (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Langford U.S. Department of Justice Disability Rights Section, Civil Rights Division 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 (202) 616−2727 Email: anne.langford@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Goodwin United States Attorney's Office 300 State Street Suite 230 Springfield, MA 01105 413−785−0269 Fax: 413−785−0394 Email: karen.goodwin@usdoj.gov ATTORNEY TO BE NOTICED
Michelle L. Leung US Attorney's Office − MA J. Joseph Moakley U.S. Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 (617) 748−3626 Email: michelle.leung@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 06/27/2014
06/27/2014 06/27/2014 06/27/2014 06/27/2014

# Docket Text
1 COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101−5079090 (Fee Status: Filing Fee paid), filed by Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Category Form, # 2 Civil Cover Sheet)(Head, Carol) (Entered: 06/27/2014)
2 CORPORATE DISCLOSURE STATEMENT by Parent/Professional Advocacy League, S. S.. (Head, Carol) (Entered: 06/27/2014)
3 MOTION to Seal Document by Parent/Professional Advocacy League, S. S..(Head, Carol) (Entered: 06/27/2014)
4 MOTION Ex Parte Application to Proceed Under a Fictitious Name by Parent/Professional Advocacy League, S. S..(Head, Carol) (Entered: 06/27/2014)
5 MEMORANDUM in Support re 4 MOTION Ex Parte Application to Proceed Under a Fictitious Name filed by Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit)(Head, Carol) (Entered: 06/27/2014)

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06/30/2014 06/30/2014 06/30/2014
06/30/2014 06/30/2014 06/30/2014 06/30/2014
07/01/2014 07/01/2014 07/01/2014 07/01/2014
07/01/2014
07/02/2014 07/02/2014 07/02/2014

6 NOTICE of Appearance by Robert D. Fleischner on behalf of Parent/Professional Advocacy League, S. S. (Fleischner, Robert) (Entered: 06/30/2014)
7 ELECTRONIC NOTICE of Case Assignment. Judge Mark G. Mastroianni assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Kenneth P. Neiman. (Abaid, Kimberly) (Entered: 06/30/2014)
8 Summons Issued as to DOMENIC J SARNO, City of Springfield, Springfield Public Schools, Daniel J. Warwick. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Lindsay, Maurice) (Entered: 06/30/2014)
9 NOTICE of Appearance by Elizabeth M. Sartori on behalf of Parent/Professional Advocacy League, S. S. (Sartori, Elizabeth) (Entered: 06/30/2014)
10 NOTICE of Appearance by Jacqueline S. Delbasty on behalf of Parent/Professional Advocacy League, S. S. (Delbasty, Jacqueline) (Entered: 06/30/2014)
11 NOTICE of Appearance by Robert E. McDonnell on behalf of Parent/Professional Advocacy League, S. S. (McDonnell, Robert) (Entered: 06/30/2014)
13 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered REFERRING CASE to Magistrate Judge Kenneth P. Neiman. Motions referred: 3 MOTION to Seal Document, 4 MOTION Ex Parte Application to Proceed Under a Fictitious Name. (Lindsay, Maurice) Modified on 8/4/2014 to correct text and referral type. (Healy, Bethaney). (Entered: 06/30/2014)
14 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 3 Plaintiffs' Motion to Seal Document and 4 Plaintiffs' Ex Parte Application to Proceed Under a Fictitious Name. So ordered. (Neiman, Kenneth) (Entered: 07/01/2014)
15 MOTION for Leave to Appear Pro Hac Vice for admission of Deborah Dorfman Filing fee: $ 100, receipt number 0101−5083387 by Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Certification)(Fleischner, Robert) (Entered: 07/01/2014)
16 MOTION for Leave to Appear Pro Hac Vice for admission of Samuel Miller Filing fee: $ 100, receipt number 0101−5083413 by Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Certification)(Fleischner, Robert) (Entered: 07/01/2014)
17 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 15 Motion for Leave to Appear Pro Hac Vice Added Deborah A. Dorfman. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 07/01/2014)
18 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 16 Motion for Leave to Appear Pro Hac Vice Added Samuel Miller. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 07/01/2014)
20 SUMMONS Returned Executed City of Springfield served on 6/30/2014, answer due 7/21/2014. (Delbasty, Jacqueline) (Entered: 07/02/2014)
21 SUMMONS Returned Executed Domenic Sarno served on 6/30/2014, answer due 7/21/2014. (Delbasty, Jacqueline) (Entered: 07/02/2014)
22 SUMMONS Returned Executed Springfield Public Schools served on 6/30/2014, answer due 7/21/2014. (Delbasty, Jacqueline) (Entered: 07/02/2014)

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07/03/2014 07/03/2014 07/03/2014 07/03/2014 07/08/2014
07/08/2014
07/17/2014 07/21/2014 07/22/2014 07/22/2014 07/28/2014 07/28/2014
08/01/2014 08/04/2014

23 NOTICE of Appearance by Samuel Miller on behalf of Parent/Professional Advocacy League, S. S. (Miller, Samuel) (Entered: 07/03/2014)
24 SUMMONS Returned Executed Daniel J. Warwick served on 6/30/2014, answer due 7/21/2014. (Delbasty, Jacqueline) (Entered: 07/03/2014)
25 MOTION for Leave to Appear Pro Hac Vice for admission of Jennifer Mathis Filing fee: $ 100, receipt number 0101−5086944 by Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Certification of Jennifer Mathis)(Delbasty, Jacqueline) (Entered: 07/03/2014)
26 MOTION for Leave to Appear Pro Hac Vice for admission of Ira Burnim Filing fee: $ 100, receipt number 0101−5087252 by Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Certification of Ira Burnim)(Delbasty, Jacqueline) (Entered: 07/03/2014)
27 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 25 Motion for Leave to Appear Pro Hac Vice Added Jennifer Mathis. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 07/08/2014)
28 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 26 Motion for Leave to Appear Pro Hac Vice Added Ira Burnim. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 07/08/2014)
29 NOTICE of Appearance by Edward M. Pikula on behalf of Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick (Pikula, Edward) (Entered: 07/17/2014)
30 First MOTION for Extension of Time to July 28, 2014 to File Answer or Responsive Pleading by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick.(Pikula, Edward) (Entered: 07/21/2014)
31 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 30 Motion for Extension of Time to July 28, 2014 to File Answer or Responsive Pleading (Pelegano, Theresa) (Entered: 07/22/2014)
32 Set/Reset Answer due Deadlines: Domenic Sarno 7/28/2014; City of Springfield 7/28/2014; Springfield Public Schools 7/28/2014; Daniel J. Warwick 7/28/2014. (Finn, Mary) (Entered: 07/22/2014)
33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick.(Pikula, Edward) (Entered: 07/28/2014)
34 MEMORANDUM in Support re 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick. (Attachments: # 1 Exhibit "A" BSEA decision, # 2 Exhibit "B" CPR report, # 3 Exhibit "C" CAP report, # 4 Exhibit "D" state approve elementary school, # 5 Exhibit "E" state approve middle school, # 6 Exhibit "F" state approve high school)(Pikula, Edward) (Entered: 07/28/2014)
35 Assented to MOTION for Extension of Time to August 27, 2014 to File Response/Reply as to 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Parent/Professional Advocacy League, S. S..(Head, Carol) (Entered: 08/01/2014)
36 Case no longer referred to Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 08/04/2014)

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08/06/2014
08/27/2014 08/27/2014 08/27/2014 08/27/2014 09/03/2014 09/08/2014
09/12/2014 09/15/2014
09/17/2014 12/02/2014 12/05/2014 12/05/2014 12/16/2014 01/15/2015 01/30/2015 02/10/2015

37 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 35 Motion for Extension of Time to File Response/Reply re 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Responses due by 8/27/2014 (Pelegano, Theresa) (Entered: 08/06/2014)
38 NOTICE by Parent/Professional Advocacy League, S. S. (Attachments: # 1 Appendix)(Dorfman, Deborah) (Entered: 08/27/2014)
39 NOTICE of Appearance by Anne Langford on behalf of United States of America (Langford, Anne) (Entered: 08/27/2014)
40 AMICUS BRIEF filed by United States of America (Statement of Interest). (Langford, Anne) (Entered: 08/27/2014)
41 Opposition re 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Head, Carol) (Entered: 08/27/2014)
42 MOTION for Leave to File Reply Brief by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick.(Pikula, Edward) (Entered: 09/03/2014)
43 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 42 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Pelegano, Theresa) (Entered: 09/08/2014)
44 NOTICE of Appearance by Anthony I. Wilson on behalf of Domenic Sarno, City of Springfield (Wilson, Anthony) (Entered: 09/12/2014)
45 REPLY to Response to 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick. (Attachments: # 1 Affidavit Dr Morris, # 2 Affidavit M Martin)(Pikula, Edward) (Entered: 09/15/2014)
46 MOTION for Leave to File Surreply in Opposition to Defendants' Motion to Dismiss by Parent/Professional Advocacy League, S. S..(Head, Carol) (Entered: 09/17/2014)
47 NOTICE of Change of Address or Firm Name by Elizabeth M. Sartori (Sartori, Elizabeth) (Entered: 12/02/2014)
48 MOTION for Leave to File Amended Complaint by Parent/Professional Advocacy League, S. S..(Head, Carol) (Entered: 12/05/2014)
49 MEMORANDUM in Support re 48 MOTION for Leave to File Amended Complaint filed by Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Head, Carol) (Entered: 12/05/2014)
50 Opposition re 48 MOTION for Leave to File Amended Complaint filed by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick. (Attachments: # 1 Affidavit Dr. Morris)(Pikula, Edward) (Entered: 12/16/2014)
51 Unobjected−to Letter/request (non−motion) from Plaintiffs (Requesting that the Court set a Scheduling Conference). (Head, Carol) (Entered: 01/15/2015)
52 MOTION for Protective Order as to discovery by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick.(Pikula, Edward) (Entered: 01/30/2015)
53 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 48 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. The court finds the proposed amendments do not prejudice the non−moving party and will not cause more than minor delay. Plaintiffs' motion is therefore granted, consistent with Fed. R. Civ. P. 15(a). (Pelegano, Theresa) (Entered: 02/10/2015)

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02/10/2015 02/11/2015 02/13/2015 02/24/2015 02/26/2015 03/18/2015 03/18/2015
03/19/2015 03/19/2015 03/20/2015 03/23/2015 04/03/2015 04/10/2015 04/10/2015 04/27/2015 04/28/2015

54 ELECTRONIC NOTICE Setting Hearing on Motion 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 3/17/2015 11:00 AM in Franklin Courtroom before Judge Mark G. Mastroianni. (Pelegano, Theresa) (Entered: 02/10/2015)
55 AMENDED COMPLAINT Leave to file granted on February 10, 2015, Dkt. No. 53 against All Defendants, filed by Parent/Professional Advocacy League, S. S., Disability Law Center, Inc..(Head, Carol) (Entered: 02/11/2015)
56 MEMORANDUM in Opposition re 52 MOTION for Protective Order as to discovery filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Declaration of Carol E. Head)(Head, Carol) (Entered: 02/13/2015)
57 NOTICE of Appearance by Carol E. Head on behalf of Disability Law Center, Inc., Parent/Professional Advocacy League, S. S. (Head, Carol) (Entered: 02/24/2015)
58 ELECTRONIC NOTICE Setting Hearing on Motion 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 3/25/2015 10:30 AM in Franklin Courtroom before Judge Mark G. Mastroianni. (The hearing on 3/17/15 has been rescheduled.)(Pelegano, Theresa) (Entered: 02/26/2015)
59 NOTICE of Appearance by Sandra J. Staub on behalf of Disability Law Center, Inc., Parent/Professional Advocacy League, S. S. (Staub, Sandra) (Entered: 03/18/2015)
60 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 46 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. Must be filed by 3/20/15. (Pelegano, Theresa) (Entered: 03/18/2015)
61 NOTICE of Appearance by Karen L. Goodwin on behalf of United States of America (Goodwin, Karen) (Main Document 61 replaced on 3/19/2015 with notice of appearance in the correct PDF format) (Finn, Mary). Modified on 3/19/2015 (Finn, Mary). (Entered: 03/19/2015)
62 NOTICE of Appearance by Michelle L. Leung on behalf of United States of America (Leung, Michelle) (Entered: 03/19/2015)
63 SUR−REPLY to Motion re 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Leave to file granted on March 18, 2015, Dkt. No. 60 filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit A)(Head, Carol) (Entered: 03/20/2015)
64 ELECTRONIC NOTICE Resetting Hearing on Motion 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing rescheduled for 4/8/2015 11:00 AM in Franklin Courtroom before Judge Mark G. Mastroianni. (The hearing on 3/25/15 is canceled.)(Pelegano, Theresa) (Entered: 03/23/2015)
65 ELECTRONIC NOTICE Resetting Hearing on Motion 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 4/23/2015 02:30 PM in Franklin Courtroom before Judge Mark G. Mastroianni. (The hearing on 4/8/15 has been rescheduled.)(Pelegano, Theresa) (Entered: 04/03/2015)
66 Joint MOTION to Continue Hearing on Motion to Dismiss to April 30, 2015 by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Head, Carol) (Entered: 04/10/2015)
67 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 66 Motion to Continue Hearing on Motion to Dismiss Hearing rescheduled for 4/30/2015 10:00 AM in Franklin Courtroom before Judge Mark G. Mastroianni. (Pelegano, Theresa) (Entered: 04/10/2015)
68 Emergency MOTION to Continue Hearing on Motion to Dismiss to May 8, 2015 by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick.(Pikula, Edward) (Entered: 04/27/2015)
69 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 68 Motion to Continue April 30, 2015 Motion Hearing. Allowed. The clerk shall set a new date.

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04/29/2015 05/11/2015 05/13/2015
05/18/2015
05/18/2015
06/29/2015 08/14/2015 08/18/2015 08/18/2015 08/19/2015

(Healy, Bethaney) (Entered: 04/28/2015)
70 ELECTRONIC NOTICE of Hearing.Hearing rescheduled for 5/13/2015 03:00 PM in Franklin Courtroom before Judge Mark G. Mastroianni. (Pelegano, Theresa) (Entered: 04/29/2015)
71 NOTICE of Withdrawal of Appearance by Samuel R. Miller (Miller, Samuel) (Entered: 05/11/2015)
72 ELECTRONIC Clerk's Notes for proceedings held before Judge Mark G. Mastroianni: Motion Hearing held on 5/13/2015 re 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by City of Springfield, Domenic Sarno, Springfield Public Schools, Daniel J. Warwick. Argument completed. Court takes matter under advisement. (Court Reporter: Alice Moran atalice.moran@verizon.net.)(Attorneys present: Dorfman, Fleischner, Head, Pikula) (Pelegano, Theresa) (Entered: 05/13/2015)
73 Transcript of Motion to Dismiss Hearing held on May 13, 2015, before Judge Mark G. Mastroianni. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 6/8/2015. Redacted Transcript Deadline set for 6/18/2015. Release of Transcript Restriction set for 8/17/2015. (Scalfani, Deborah) (Entered: 05/18/2015)
74 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/18/2015)
75 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 52 Motion for Protective Order as to discovery to clarify docket while motion is pending. (Pelegano, Theresa) (Entered: 06/29/2015)
76 MOTION for Rule 16 Scheduling Conference and to Lift Protective Order by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Head, Carol) (Entered: 08/14/2015)
77 If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Katherine A. Robertson. (Abaid, Kimberly) (Entered: 08/18/2015)
78 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge Katherine A. Robertson Referred for: Full Pretrial, No Dispositive Motions (ptn). Motions referred: 76 MOTION for Rule 16 Scheduling Conference and to Lift Protective Order . (Pelegano, Theresa) (Entered: 08/18/2015)
79 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 76 Motion for a Rule 16 Scheduling Conference and to Lift Stay of Discovery. This motion was referred by District Judge Mastroianni to the undersigned for decision. In ruling on the plaintiffs' motion for an initial scheduling conference and to lift the stay on discovery that is presently in effect, the court has reviewed and carefully considered Defendants' Response to Unobjected−To Letter/Request (Non−Motion) from Plaintiffs Requesting that the Court Set a Scheduling Conference and Request for Protective Order, filed on January 30, 2015, in response to plaintiff's first request for a scheduling conference (Dkt. No. 51). Plaintiffs filed this case well over a year ago, in June 2014. In civil cases, Federal Rule of Civil Procedure 16 and Local Rule 16.1 of this district require that an initial case management conference be held and a scheduling order issued within 120 days after any defendant has been served or any defendant has appeared. See Fed. R. Civ. P. 16(b). No case management conference has been held in this case and no scheduling order has issued. Defendants sought and, over plaintiffs' objection, obtained a stay of discovery on the basis of a motion to dismiss, which was argued and remains pending (Dkt. Nos. 33, 52). By the instant motion, plaintiffs seek to have the court set a date for an initial scheduling conference so that counsel may engage in discussions about discovery and jointly propose a schedule of discovery and related events, including the preservation of electronically stored information. "In potential class actions [such as this one], like in other kinds of litigation, '[c]ourts

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 13 of 29

08/19/2015
08/20/2015 08/20/2015 08/24/2015
09/16/2015 09/16/2015 09/16/2015 09/16/2015 09/23/2015

generally frown on motions to stay discovery and deny them in the absence of compelling reasons.'" Evans v. Yum Brands, Inc., 326 F. Supp. 2d 214, 226 (D.N.H. 2004) (quoting 3 Alba Conte & Herbert B. Newberg, Newberg on Class Actions, section 9:43 at 404 (4th ed. 2002); collecting cases). As Chief Judge Saris observed in In re Lotus Dev. Corp. Secs. Litig., 875 F. Supp. 48, 51 (D. Mass. 1995), "to make a stay more readily obtainable simply because there is a colorable motion to dismiss, would undermine the spirit of [Rule 26.]" Here, the only bases for the stay articulated by the defendants are the burden and expense of providing discovery and their belief that they are likely to prevail on the motion to dismiss (Dkt. No. 52 at 2−9). "A defendant's confidence that it will prevail on a dispositive motion does not in and of itself justify holding discovery in abeyance." Yum Brands, Inc., 326 F. Supp. 2d at 226. Discovery entails burden and expense in every case. There are not, therefore, compelling reasons for staying discovery in this matter. On the other hand, plaintiffs have asserted their right to see progress in this case and have raised the specter that evidence, including electronically stored evidence, may be lost if the parties are not required to confer about a discovery plan. The plaintiffs have the better of the arguments. For the reasons set forth above, the plaintiffs' motion is allowed. A scheduling conference will be held on September 23, 2015 at 2:00 p.m. The parties are directed to confer for purposes of preparing a joint discovery plan pursuant to Federal Rule of Civil Procedure 26(f) and Local Rule 16.1, which shall be filed with the court by September 16, 2015. It is so ordered. (Robertson, Katherine) (Entered: 08/19/2015)
80 MOTION for Reconsideration re 79 Order on Motion for Scheduling conf. and Motion to Lift Stay and Opposition to 76 motion to lift protective order by Domenic Sarno, City of Mpringfield, Springfield Public Schools, Daniel J. Warwick.(Pikula, Edward) Modified on 8/20/2015 to add − and opposition to Motion to lift protective order to the text. (Finn, Mary). (Entered: 08/19/2015)
81 NOTICE of Scheduling Conference ISSUED: A Scheduling Conference is set for 9/23/2015 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Joint statement due 9/16/2015. (Calderon, Melissa) (Entered: 08/20/2015)
82 Opposition re 80 MOTION for Reconsideration re 79 Order on Motion for Miscellaneous Relief,,,,,,,,,,,,,, filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Head, Carol) (Entered: 08/20/2015)
83 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered denying 80 defendants' motion for reconsideration. The court is not persuaded that it committed a manifest error of law in allowing plaintiffs' motion to convene a scheduling conference and lift the protective order staying all planning for discovery in this case. See, e.g., Fabrica de Muebles J.J. Alvarez, Inc. v. Inversiones, Inc., 682 F.3d 26, 31 (1st Cir. 2012). The court carefully considered the arguments the defendants made in support of their motion for a stay of discovery, which are similar to those made in its motion for reconsideration. Federal Rule of Civil Procedure 16(b), which directs the convening of initial scheduling conferences, contains no exception for cases in which a motion to dismiss has been filed, nor are private entities treated differently from public entities under the rule. For these reasons, the defendants' motion for reconsideration is denied. It is so ordered. (Robertson, Katherine) (Entered: 08/24/2015)
84 JOINT STATEMENT of counsel and Proposed Discovery Plan. (Attachments: # 1 Exhibit [Proposed] Joint Stipulation and Electronic Discovery Agreement)(Head, Carol) (Entered: 09/16/2015)
85 CERTIFICATION pursuant to Local Rule 16.1 (D)(3) of Plaintiff Parent/Professional Advocacy League. (Head, Carol) (Entered: 09/16/2015)
86 CERTIFICATION pursuant to Local Rule 16.1 (D)(3) of Plaintiff Disability Law Center. (Head, Carol) (Entered: 09/16/2015)
87 CERTIFICATION pursuant to Local Rule 16.1 (D)(3) of Plaintiff S.S., a Minor, by His Mother, S.Y.. (Head, Carol) (Entered: 09/16/2015)
88 CERTIFICATION pursuant to Local Rule 16.1 by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick.(Pikula, Edward) (Entered: 09/23/2015)

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 14 of 29

09/23/2015
09/24/2015 10/06/2015
10/06/2015 10/09/2015 10/16/2015 10/16/2015 10/16/2015 10/16/2015 11/16/2015 11/17/2015 11/18/2015
11/18/2015

89 ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: A Scheduling Conference was held on 9/23/2015. Attorneys Present: Carol E. Head, Sandra J. Staub, Deborah A Dorfman and Edward M. Pikula. Colloquy re: status of the case. A schedule was established. Scheduling order to issue. If the parties would like court−sponsored mediation, they should notify the clerk. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 09/24/2015)
90 Magistrate Judge Katherine A. Robertson: ORDER entered. SCHEDULING ORDER ISSUED: A Case Management Conference is set for 3/22/2016 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. See attached scheduling order for complete details. (Calderon, Melissa) (Entered: 09/24/2015)
91 Transcript of Initial Scheduling Conference held on September 23, 2015, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through Karen Aveyard at 978−466−9383, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name: No Reporter Used. Digital Recording transcribed by Karen Aveyard. Redaction Request due 10/27/2015. Redacted Transcript Deadline set for 11/6/2015. Release of Transcript Restriction set for 1/4/2016. (Scalfani, Deborah) (Entered: 10/06/2015)
92 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/06/2015)
93 Joint MOTION for Protective Order and Stipulation Regarding the Production of Directory Information by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit 1)(Head, Carol) (Entered: 10/09/2015)
94 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 93 Motion for Protective Order and Stipulation Regarding the Production of Directory Information (Pelegano, Theresa) (Entered: 10/16/2015)
95 Judge Mark G. Mastroianni: ORDER entered. RE; MOTION for Protective Order and Stipulation Regarding the Production of Directory Information(Pelegano, Theresa) (Entered: 10/16/2015)
96 MOTION to Certify Class by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Head, Carol) (Entered: 10/16/2015)
97 MEMORANDUM in Support re 96 MOTION to Certify Class filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Head, Carol) (Entered: 10/16/2015)
98 MOTION for Leave to File Excess Pages by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick. (Attachments: # 1 Exhibit Memo of law in opp, # 2 Affidavit Paul Foster, # 3 Exhibit Resume Pstoer, # 4 Exhibit Altern Schools Impact Analysis)(Pikula, Edward) (Entered: 11/16/2015)
99 Opposition re 98 MOTION for Leave to File Excess Pages filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Head, Carol) (Entered: 11/17/2015)
100 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 98 Motion for Leave to File Excess Pages. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Robertson, Katherine) (Entered: 11/18/2015)
101 Opposition re 96 MOTION to Certify Class (leave granted to file excess pages 11/18/15) filed by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick. (Attachments: # 1 Affidavit Paul Foster, # 2 Exhibit Paul Foster CV, # 3 Exhibit Foster Impact Analysis)(Pikula, Edward) (Entered: 11/18/2015)

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 15 of 29

11/19/2015
11/20/2015 12/10/2015 12/10/2015 12/11/2015
12/11/2015 01/05/2016 01/06/2016 01/06/2016 01/19/2016 02/08/2016 02/16/2016 02/17/2016 02/17/2016
02/19/2016 02/19/2016 02/19/2016 02/22/2016 02/22/2016

102 Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered. For the foregoing reasons, the Court DENIES Defts' Motion to Dismiss − 33 as to the claims against Defts. City of Springfield and Springfield Public Schools and ALLOWS the Motion − 33 as to the claims against Defts. Domenic Sarno and Daniel J. Warwick. (Finn, Mary) (Entered: 11/19/2015)
103 ELECTRONIC NOTICE Setting Hearing on Motion 96 MOTION to Certify Class : Motion Hearing set for 1/7/2016 02:00 PM in Franklin Courtroom before Judge Mark G. Mastroianni. (Pelegano, Theresa) (Entered: 11/20/2015)
104 Joint MOTION to Continue Hearing Date on Motion to Certify Class by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Head, Carol) (Entered: 12/10/2015)
105 NOTICE of Appearance by Lisa C. deSousa on behalf of City of Springfield (deSousa, Lisa) (Entered: 12/10/2015)
106 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 104 Motion to Continue Hearing on 1/7/2016 is granted. A new date re: motion will be set by the Magistrate Judge on 3/22/2016 case management conference. (Pelegano, Theresa) (Entered: 12/11/2015)
107 ELECTRONIC NOTICE Canceling Hearing. The 1/7/2016 hearing re:MOTION to Certify Class by Disability Law Center is canceled. (Pelegano, Theresa) (Entered: 12/11/2015)
108 NOTICE of Appearance by Lisa C. deSousa on behalf of City of Springfield (deSousa, Lisa) (Entered: 01/05/2016)
109 ANSWER to 55 Amended Complaint by City of Springfield, Springfield Public Schools.(Pikula, Edward) (Entered: 01/06/2016)
110 NOTICE of Appearance by Mary J. Kennedy on behalf of City of Springfield (Kennedy, Mary) (Entered: 01/06/2016)
111 NOTICE of Appearance by Melinda M. Phelps on behalf of City of Springfield (Phelps, Melinda) (Entered: 01/19/2016)
112 NOTICE of Withdrawal of Appearance by Anthony I. Wilson (Wilson, Anthony) (Entered: 02/08/2016)
113 Joint MOTION to Amend Scheduling Order by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Proposed Amended Scheduling Order)(Sartori, Elizabeth) (Entered: 02/16/2016)
114 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting Joint 113 Motion to Amend Scheduling Order. A separate scheduling order shall issue. (Calderon, Melissa) (Entered: 02/17/2016)
115 Magistrate Judge Katherine A. Robertson: ORDER entered. AMENDED SCHEDULING ORDER ISSUED: Case Management Conferences are set for 2/24/2016 at 10:30 AM, 3/22/2016 at 2:00 PM and 5/24/2016 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. See attached order for complete details. (Calderon, Melissa) (Entered: 02/17/2016)
116 NOTICE of Withdrawal of Appearance by Carol E. Head (Head, Carol) (Entered: 02/19/2016)
117 NOTICE of Appearance by Jeff Goldman on behalf of Disability Law Center, Inc., Parent/Professional Advocacy League, S. S. (Goldman, Jeff) (Entered: 02/19/2016)
118 Letter/request (non−motion) from Plaintiffs Concerning February 24, 2016 Case Management Conference. (Delbasty, Jacqueline) (Entered: 02/19/2016)
119 NOTICE of Appearance by Michael D. Blanchard on behalf of Disability Law Center, Inc., Parent/Professional Advocacy League, S. S. (Blanchard, Michael) (Entered: 02/22/2016)
120 ELECTRONIC NOTICE OF RESCHEDULING ISSUED: The Case Management Conference is reset for 2/24/2016 at 3:00 PM in Hampshire Courtroom before

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 16 of 29

02/24/2016
03/01/2016 03/07/2016 03/07/2016 03/10/2016 03/22/2016
04/04/2016 04/04/2016 04/11/2016 04/15/2016

Magistrate Judge Katherine A. Robertson. (PLEASE NOTE CHANGE AS TO TIME ONLY). (Calderon, Melissa) (Entered: 02/22/2016)
121 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Case Management Conference held on 2/24/2016. Attorneys Present: Jacqueline S. Delbasty, Deborah A Dorfman, Sandra J. Staub, Melinda M. Phelps and Edward M. Pikula. Colloquy re: status of the case and 118 Letter filed by Plaintiffs' counsel. Rulings were made in open court. The deadlines and hearings set forth in the 115 Amended Scheduling Order shall remain as set. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 03/01/2016)
122 Set Hearings (for the purpose of Case Management ONLY): Case Management Conference set for 3/22/2016 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Case Management Conference set for 5/24/2016 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Dates and time have remained as set forth in the 115 Amended Scheduling Order) (Calderon, Melissa) (Entered: 03/01/2016)
123 Transcript of Motion Hearing held on February 24, 2016, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through Maryann Young at yts2@verizon.net, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter: No Reporter Used. Digital Recording transcribed by Maryann Young. Redaction Request due 3/28/2016. Redacted Transcript Deadline set for 4/7/2016. Release of Transcript Restriction set for 6/6/2016. (Scalfani, Deborah) (Entered: 03/07/2016)
124 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/07/2016)
125 Letter/request (non−motion) from Defendant Concerning February 24, 2016 Case Management Conference. (Phelps, Melinda) (Entered: 03/10/2016)
126 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Case Management Conference held on 3/22/2016. Attorneys Present: Sandra J. Staub, Deborah A. Dorfman, Robert D. Fleischner, Lisa C. deSousa, Mary J. Kennedy, Melinda M. Phelps and Edward M. Pikula. Colloquy re: status of the case. A Case Management Conference is set for 4/13/2016 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. All other deadlines/hearings shall remain as set in the Amended Scheduled Order (Dkt. No. 115 ) issued on 2/17/2016. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 03/23/2016)
127 Transcript of Status Conference held on March 22, 2016, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through Maryann Young at yts2@verizon.net, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter: No Reporter Used. Digital Recording transcribed by Maryann Young. Redaction Request due 4/25/2016. Redacted Transcript Deadline set for 5/5/2016. Release of Transcript Restriction set for 7/4/2016. (Scalfani, Deborah) (Entered: 04/04/2016)
128 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 04/04/2016)
129 ELECTRONIC NOTICE OF RESCHEDULING ISSUED: The Case Management Conference is reset for 4/21/2016 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 04/11/2016)
130 Letter/request (non−motion) from Plaintiffs concerning April 21, 2016 Case Management Conference. (Delbasty, Jacqueline) (Entered: 04/15/2016)

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04/19/2016 04/20/2016 04/20/2016 04/21/2016 04/21/2016
04/21/2016 04/25/2016 05/11/2016 05/13/2016 05/16/2016 05/16/2016
05/16/2016 05/19/2016 05/19/2016

131 Assented to MOTION to participate in case management conference by telephone by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Delbasty, Jacqueline) (Entered: 04/19/2016)
132 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting Plaintiffs' Assented−to 131 Motion for Counsel to Participate in Case Management Conference by Telephone. The clerk shall inform counsel of the procedures to follow in order to participate by telephone. (Calderon, Melissa) (Entered: 04/20/2016)
133 Remark: Telephone conference information sent to counsel by email. (Calderon, Melissa) (Entered: 04/20/2016)
134 Assented to MOTION to Amend 115 Scheduling Order,, Set Motion and R&R Deadlines/Hearings, and proposed order by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Text of Proposed Order)(Goldman, Jeff) (Entered: 04/21/2016)
135 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Case Management Conference held on 4/21/2016. Attorneys Present: Sandra J. Staub, Deborah A Dorfman, Jeff Goldman (by telephone), Elizabeth M. Bresnahan (by telephone), Lisa C. deSousa and Melinda M. Phelps. Colloquy re: status of the case. For the reasons stated in open court, Plaintiff's Assented−to Motion to Amend the Scheduling Order (Dkt. No. 134 ) shall be allowed. A scheduling order shall issue. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 04/25/2016)
136 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting Plaintiff's Assented−to 134 Motion to Amend the Scheduling Order. A separate scheduling order shall issue. (Calderon, Melissa) (Entered: 04/25/2016)
137 Magistrate Judge Katherine A. Robertson: ORDER entered. AMENDED SCHEDULING ORDER ISSUED: A Case Management Conference is set for 5/24/2016 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. See attached scheduling order for complete details. (Calderon, Melissa) (Entered: 04/25/2016)
138 NOTICE of Appearance by Matthew T. Bohenek on behalf of Parent/Professional Advocacy League, S. S. (Bohenek, Matthew) (Entered: 05/11/2016)
139 Assented to MOTION for Extension of Time to May 16, 2016 to serve Plaintiffs' expert report on class certification, from May 13, 2016 by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Goldman, Jeff) (Entered: 05/13/2016)
140 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 139 plaintiffs' assented−to motion for an extension of time to May 16, 2016 to serve plaintiffs' expert report on class certification. (Robertson, Katherine) (Entered: 05/16/2016)
141 Transcript of Case Management Conference held on April 21, 2016, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through Alice Moran at alice.moran@verizon.net, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter. No court reporter used. Digital Recording transcribed by Alice Moran. Redaction Request due 6/6/2016. Redacted Transcript Deadline set for 6/16/2016. Release of Transcript Restriction set for 8/15/2016. (Scalfani, Deborah) (Entered: 05/16/2016)
142 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/16/2016)
143 Letter/request (non−motion) from Mary J. Kennedy regarding status of discovery. (Kennedy, Mary) (Entered: 05/19/2016)
144 Letter/request (non−motion) from Plaintiffs concerning May 24, 2016 Case Management Conference. (Bohenek, Matthew) (Entered: 05/19/2016)

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 18 of 29

05/24/2016
06/03/2016 06/09/2016
06/09/2016 06/09/2016 06/09/2016
06/23/2016 06/24/2016 06/24/2016 06/27/2016 07/14/2016 07/15/2016

145 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Case Management Conference held on 5/24/2016. Attorneys Present: Jacqueline S. Delbasty, Deborah A Dorfman, Matthew T. Bohenek, Melinda M. Phelps, Mary J. Kennedy and Lisa C. deSousa. Colloquy re: status of the case and proposed deadlines. The parties are to file a joint proposed schedule by no later than June 3, 2016. Once a proposal has been filed, a further scheduling order shall issue. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 06/01/2016)
146 Joint MOTION to Amend 137 Scheduling Order,, Set Motion and R&R Deadlines/Hearings, by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Bohenek, Matthew) (Entered: 06/03/2016)
147 Transcript of Case Management Conference held on May 24, 2016, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Digital Recording transcribed by Alice Moran at alice.moran@verizon.net Redaction Request due 6/30/2016. Redacted Transcript Deadline set for 7/11/2016. Release of Transcript Restriction set for 9/7/2016. (Scalfani, Deborah) (Entered: 06/09/2016)
148 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/09/2016)
149 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 146 Joint Motion to Amend Scheduling Order. A separate order shall issue. (Calderon, Melissa) (Entered: 06/09/2016)
150 Magistrate Judge Katherine A. Robertson: ORDER entered. SCHEDULING ORDER: Case Management Conference set for 6/24/2016 02:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. Pltfs' Suppl. Motion for class certification due by 7/15/2016. Defts' responses due 8/15/2016. Replies, if any, due by 8/31/2016. Motion Hearing set for 9/29/2016 11:00 AM in Franklin Courtroom before Judge Mark G. Mastroianni re: 96 Motion for class certification and the suppl. motion for class certification. Another Case Management Conference set for 10/13/2016 at 2:00 P.M. in the Hampshire Courtroom before Magsitrate Judge Katherine A. Robertson. See Order for complete and further deadlines. (Finn, Mary) (Entered: 06/09/2016)
151 Joint MOTION to Amend 150 Scheduling Order,,, Set Scheduling Order Deadlines,,, Set Motion and R&R Deadlines/Hearings,, /Motion to Cancel Case Management Conference by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Bohenek, Matthew) (Entered: 06/23/2016)
152 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 151 the parties' joint motion to cancel the 6/24/16 case management conference. (Robertson, Katherine) (Entered: 06/24/2016)
153 ELECTRONIC NOTICE Canceling Hearing ISSUED: The Case Management Conference set for 6/24/2016 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson is hereby VACATED. (Calderon, Melissa) (Entered: 06/24/2016)
154 Set/Reset Hearings: Case Management Conference set for 10/13/2016 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 06/27/2016)
155 Assented to MOTION for Leave to File Excess Pages by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Bohenek, Matthew) (Entered: 07/14/2016)
156 Judge Mark G. Mastroianni: ENDORSED ORDER entered granting 155 Motion for Leave to File Excess Pages. (Bartlett, Timothy) (Entered: 07/15/2016)

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07/15/2016 07/15/2016 07/15/2016
08/15/2016 08/15/2016 08/15/2016 08/15/2016 08/16/2016 08/16/2016
08/16/2016 08/26/2016 08/27/2016 08/27/2016 08/29/2016

157 Supplemental MEMORANDUM in Support re 96 MOTION to Certify Class filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3)(Bohenek, Matthew) (Entered: 07/15/2016)
158 DECLARATION re 157 Memorandum in Support of Motion, by Peter E. Leone, Ph.D by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit A)(Bohenek, Matthew) (Entered: 07/15/2016)
159 DECLARATION re 157 Memorandum in Support of Motion, by Mathew T. Bohenek by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43)(Bohenek, Matthew) (Entered: 07/15/2016)
160 Assented to MOTION for Leave to File Excess Pages by City of Springfield, Springfield Public Schools.(Kennedy, Mary) (Entered: 08/15/2016)
161 MOTION for Extension of Time to 08/16/16 to to file opposition to class certification by City of Springfield.(Kennedy, Mary) (Entered: 08/15/2016)
162 MOTION to In Limine to exclude/limit 158 Declaration of Peter Leone, PhD by City of Springfield, Springfield Public Schools.(Pikula, Edward) Modified on 8/16/2016 to change the relief type of the motion to MOTION in Limine. (Finn, Mary). (Entered: 08/15/2016)
163 MEMORANDUM in Support re 162 MOTION in Limine to Exclude/Limit 158 Declaration of Peter Leone, PhD filed by City of Springfield, Springfield Public Schools. (Pikula, Edward) Modified on 8/16/2016 to correct the text. (Finn, Mary). (Entered: 08/15/2016)
164 Letter/request (non−motion) from Mary−Jo Kennedy stating that the Pltfs' counsel has no objection to their motion to ext. time to file suppl. opp. − doc. 161 . (Finn, Mary) (Entered: 08/16/2016)
165 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 160 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document.; granting 161 Motion for Extension of Time (Finn, Mary) (Entered: 08/16/2016)
166 Supplemental MEMORANDUM in Opposition re 96 MOTION to Certify Class filed by Domenic Sarno, City of Springfield, Springfield Public Schools, Daniel J. Warwick. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Kennedy, Mary) (Entered: 08/16/2016)
167 Assented to MOTION for Extension of Time to August 31, 2016 to File Opposition to Defendants' Motion in Limine to Limit or Exclude the Testimony of Peter Leone (Docket Nos. 162/163) by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Bohenek, Matthew) (Entered: 08/26/2016)
168 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 167 Assented to MOTION for Extension of Time to August 31, 2016 to File Opposition to Defendants' Motion in Limine to Limit or Exclude the Testimony of Peter Leone. (Healy, Bethaney) (Entered: 08/27/2016)
169 Set/Reset Deadlines as to 162 MOTION in Limine: Responses due by 8/31/2016 (Healy, Bethaney) (Entered: 08/27/2016)
170 Assented to MOTION for Hearing re 150 Scheduling Order,,, Set Scheduling Order Deadlines,,, Set Motion and R&R Deadlines/Hearings,, to be Rescheduled by City of

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 20 of 29

08/30/2016 08/30/2016 08/31/2016 08/31/2016 09/06/2016 09/08/2016 09/08/2016 09/09/2016 09/16/2016
09/23/2016 09/28/2016 09/30/2016
09/30/2016 10/03/2016

Springfield, Springfield Public Schools.(Pikula, Edward) (Entered: 08/29/2016)
171 MOTION for Hearing Evidentiary Hearing and Finding on Plaintiff's Motion for Class Certification by City of Springfield.(deSousa, Lisa) (Entered: 08/30/2016)
172 MEMORANDUM in Support re 171 MOTION for Hearing Evidentiary Hearing and Finding on Plaintiff's Motion for Class Certification filed by City of Springfield. (deSousa, Lisa) (Entered: 08/30/2016)
173 Opposition re 162 MOTION in Limine filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit Declaration of E. Sally Rogers)(Bohenek, Matthew) (Entered: 08/31/2016)
174 REPLY to Response to 96 MOTION to Certify Class filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Attachments: # 1 Exhibit 1)(Bohenek, Matthew) (Entered: 08/31/2016)
175 MOTION for Leave to File Reply to Opp to M/Limine by City of Springfield, Springfield Public Schools.(Pikula, Edward) (Entered: 09/06/2016)
176 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 170 MOTION. This motion is being treated as a motion to continue hearing and is ALLOWED. New date to be set. (Bartlett, Timothy) (Entered: 09/08/2016)
177 Set/Reset Deadlines as to 96 MOTION to Certify Class and the suppl. motion for class certification. Motion Hearing set for 10/6/2016 11:00 AM in Franklin Courtroom before Judge Mark G. Mastroianni. (Bartlett, Timothy) (Entered: 09/08/2016)
178 Opposition re 171 MOTION for Hearing Evidentiary Hearing and Finding on Plaintiff's Motion for Class Certification filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Goldman, Jeff) (Entered: 09/09/2016)
179 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 175 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 09/16/2016)
180 REPLY to Response to 162 MOTION in Limine (leave granted 9/16/2016) filed by City of Springfield, Springfield Public Schools. (Attachments: # 1 Exhibit Aff Of LaChapelle, # 2 Exhibit Aff of Foster, # 3 Exhibit Emails re Daubert)(Pikula, Edward) (Entered: 09/23/2016)
181 Assented to MOTION for Leave to File a Sur−Reply in Opposition to Defendants' Motion to Exclude or Limit the Testimony of Peter Leone by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Bohenek, Matthew) (Entered: 09/28/2016)
182 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 181 Assented to MOTION for Leave to File a Sur−Reply in Opposition to Defendants' Motion to Exclude or Limit the Testimony of Peter Leone by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 09/30/2016)
183 SUR−REPLY to Motion re 162 MOTION in Limine (Leave to file granted 9/30/16) filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Bohenek, Matthew) (Entered: 09/30/2016)
184 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered re proceedings set for Thursday, October 6, 2016. The parties should be prepared to argue all pending motions. The court requests the parties structure their arguments around the 96 Motion to Certify Class, addressing the issues raised by the 162 Motion to Exclude or Limit the Testimony of Peter Leone and the 171 Motion for Evidentiary Hearing within the context of how those issues are relevant to deciding the 96 Motion to Certify Class. The court will consider all motions and may order further hearing on any or all.

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 21 of 29

10/04/2016 10/06/2016
10/26/2016 10/28/2016 10/28/2016 12/01/2016 12/16/2016
01/09/2017 01/10/2017 01/12/2017
02/21/2017

(Bartlett, Timothy) (Entered: 10/03/2016)
185 ELECTRONIC NOTICE OF RESCHEDULING ISSUED: The Case Management Conference is reset for 12/13/2016 at 10:30 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 10/04/2016)
186 Electronic Clerk's Notes for proceedings held before Judge Mark G. Mastroianni: Counsel appear for Motion Hearing held on 10/6/2016 re 96 MOTION to Certify Class, filed by S. S., Disability Law Center, Inc., Parent/Professional Advocacy League, 162 MOTION in Limine filed by City of Springfield, Springfield Public Schools, and 171 MOTION for Evidentiary Hearing and Finding on Plaintiff's Motion for Class Certification filed by City of Springfield. Arguments heard. Matter taken under advisement. (Court Reporter: Alice Moran at alice.moran@verizon.net.)(Attorneys present: Staub, Burnim, Pikula, deSousa) (Healy, Bethaney) (Entered: 10/20/2016)
187 NOTICE of Appearance by Mary Ellen Manganelli on behalf of City of Springfield (Manganelli, Mary) (Entered: 10/26/2016)
188 Transcript of Motion Hearing held on October 6, 2016, before Judge Mark G. Mastroianni. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 11/18/2016. Redacted Transcript Deadline set for 11/28/2016. Release of Transcript Restriction set for 1/26/2017. (Scalfani, Deborah) (Entered: 10/28/2016)
189 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/28/2016)
190 ELECTRONIC NOTICE OF RESCHEDULING ISSUED: In light of the pending motions before the presiding district judge, the Case Management Conference is reset for 1/12/2017 at 2:30 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 12/01/2016)
191 Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered. For the reasons discussed, the Court DENIES the Plaintiffs Motion for Class Certification − 96 . For purposes of reaching this ruling the Court has considered the opinions of Plaintiffs proffered expert, without first deciding whether such consideration is warranted. As Defendants have achieved their desired outcome as to the Motion for Class Certification, the court FINDS AS MOOT their Motion In Limine to Exclude or Limit − 162 and their Motion for an Evidentiary Hearing − 171 . (Finn, Mary) (Entered: 12/16/2016)
192 Letter/request (non−motion) from Plaintiffs concerning January 12, 2017 Case Management Conference. (Bohenek, Matthew) (Entered: 01/09/2017)
193 Recommendations for Scheduling Order for the Merits Phase. (deSousa, Lisa) (Entered: 01/10/2017)
194 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Case Management Conference held on 1/12/2017. Attorneys Present: Robert D. Fleischner, Sandra J. Staub, Edward M. Pikula, Lisa C. deSousa and Mary Ellen Manganelli. Colloquy re: status of the case. The parties are to file revised proposed schedules. Joint proposed schedule or competing proposals (if unable to agree) shall be filed by no later than 2/24/2017. A Status Conference is set for 2/28/2017 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 01/18/2017)
195 Transcript of Motion Hearing held on January 12, 2017, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through Maryann Young at

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 22 of 29

02/21/2017 02/24/2017 02/28/2017
03/09/2017 03/09/2017 03/22/2017 04/05/2017
04/18/2017 04/18/2017

yts2@verizon.net, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter: No Reporter Used. Digital Recording transcribed by Maryann Young. Redaction Request due 3/14/2017. Redacted Transcript Deadline set for 3/24/2017. Release of Transcript Restriction set for 5/22/2017. (Scalfani, Deborah) (Entered: 02/21/2017)
196 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/21/2017)
197 Recommendations for Scheduling Order by Plaintiffs and Defendants. (Sartori, Elizabeth) (Entered: 02/24/2017)
198 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Status Conference held on 2/28/2017. Attorneys Present: Deborah A Dorfman, Sandra J. Staub, Edward M. Pikula and Melinda M. Phelps. Colloquy re: status of the case. A further schedule was established. Scheduling order to issue. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 03/01/2017)
199 Transcript of Motion Hearing held on February 28, 2017, before Magistrate Judge Katherine A. Robertson. The Transcript may be purchased through Maryann Young at yts2@verizon.net, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter: No Reporter Used. Digital Recording transcribed by Maryann Young. Redaction Request due 3/30/2017. Redacted Transcript Deadline set for 4/10/2017. Release of Transcript Restriction set for 6/7/2017. (Scalfani, Deborah) (Entered: 03/09/2017)
200 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/09/2017)
201 NOTICE of Withdrawal of Appearance by Jacqueline S. Delbasty (Delbasty, Jacqueline) (Entered: 03/22/2017)
202 Magistrate Judge Katherine A. Robertson: ORDER entered. SCHEDULING ORDER: Deft's shall file their motion, if any, Challenging the Standing of the Associational Pltfs' by no later than 4/18/2016. Pltfs' shall serve their opposition to any such motion by no later than 5/16/2017. Defts' shall file their reply, if any, by no later than 5/31/2017. Hearing on any Motion by the Defts' Challenging the Standing of the Associational Pltfs' set for 6/26/2017 01:00 PM in Franklin Courtroom before Judge Mark G. Mastroianni. Motions to Amend the Pleadings to add claims, defenses, or parties due by 6/15/2017. Fact Discovery shall be completed by 12/15/2017.Pltfs' shall serve their Expert Disclosures on the Merits in Compliance with Federal Rule of Civil Procedure 26(a)(2) by no later than 1/30/2018. Defts' shall serve their Expert Disclosures on the Merits in Compliance with Federal Rule of Civil Procedure 26(a)(2) by no later than 3/19/2018. Pltf's shall serve their Expert Rebuttal Reports on the Merits by no later than 4/16/2018. Expert Depositions to be completed by 5/1/2018. Dispositive Motion(s) shall be filed by 6/18/2018. Oppositions shall be filed by 7/19/2018. Reply briefs, if any, shall be filed by no later than 8/2/2018. The parties are to notify the court in the event of a ruling by the United States Court of Appeals for the First Circuit on the Pltfs' pending Petition. These deadlines may be further amended on motion by the parties for good cause in view of the uncertainty about the scope of the case. (Finn, Mary) (Entered: 04/05/2017)
203 MOTION for Judgment on the Pleadings by City of Springfield.(deSousa, Lisa) (Entered: 04/18/2017)
204 MEMORANDUM in Support re 203 MOTION for Judgment on the Pleadings filed by City of Springfield. (deSousa, Lisa) (Entered: 04/18/2017)

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 23 of 29

05/16/2017 06/02/2017 06/05/2017 06/05/2017
06/26/2017 06/27/2017 06/27/2017
07/12/2017 07/26/2017 07/28/2017 07/28/2017

205 Opposition re 203 MOTION for Judgment on the Pleadings filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Bohenek, Matthew) (Entered: 05/16/2017)
206 MOTION to Amend 202 Scheduling Order,,,,,,, Set Scheduling Order Deadlines,,,,,,, Set Motion and R&R Deadlines/Hearings,,,,,, by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Bohenek, Matthew) (Entered: 06/02/2017)
207 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting Plaintiff's Unopposed 206 MOTION to Amend the Scheduling Order. Deadline Nos. 5−13 in the Revised Scheduling Order (See Dkt. No. 202 ) shall be extended by four weeks. All other deadlines shall remain as set. A revised scheduling order shall enter. (Calderon, Melissa) (Entered: 06/05/2017)
208 Magistrate Judge Katherine A. Robertson: ORDER entered. AMENDED SCHEDULING ORDER: Hearing on any Motion by the Defendants' Challenging the Standing of the Associational Plaintiffs' set for 6/26/2017 at 1:00 P.M. in the Franklin Courtroom before Judge Mark G. Mastorianni. Motions to Amend the Pleadings to add Claims, Defenses, or Parties due by 7/13/2017. Fact Discovery to be completed by 1/12/2018. Plaintiffs' Expert Disclosures due 2/27/2018. Defendants' Expert Disclosures due 4/16/2018. Plaintiffs' Expert Rebuttal Reports due 5/14/2018. Expert Despostions to be completed by 5/29/2018. Dispositive Motions due by 7/16/2018. Responses due by 8/16/2018. Replies, if any, due by 8/30/2018. (Finn, Mary) (Entered: 06/09/2017)
209 Electronic Clerk's Notes for proceedings held before Judge Mark G. Mastroianni: Motion Hearing held on 6/26/2017 re 203 MOTION for Judgment on the Pleadings filed by City of Springfield. Court hears argument, takes motion under advisement. (Court Reporter: Alice Moran at alice.moran@verizon.net.) (Attorneys present: DeSousa, Phelps, Davis, Fleischner, Bresnahan, Goldman) (Bartlett, Timothy) (Entered: 06/27/2017)
210 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Alison Barkoff Filing fee: $ 100, receipt number 0101−6688745 by S. S.. (Attachments: # 1 Certification)(Fleischner, Robert) (Attachment 1 replaced on 6/27/2017) (Lindsay, Maurice). Modified on 7/6/2017 (Calderon, Melissa). (Entered: 06/27/2017)
211 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 210 Motion for Leave to Appear Pro Hac Vice. Added Alison Barkoff. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. . (Finn, Mary) (Entered: 06/27/2017)
212 MOTION to Amend 208 Scheduling Order,,,, Set Scheduling Order Deadlines,,,, Set Motion and R&R Deadlines/Hearings,,, by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Bresnahan, Elizabeth) (Entered: 07/12/2017)
213 Opposition re 212 MOTION to Amend 208 Scheduling Order,,,, Set Scheduling Order Deadlines,,,, Set Motion and R&R Deadlines/Hearings,,, and Defendants Cross−Motion for a Stay of the Case filed by City of Springfield. (Attachments: # 1 Exhibit A − Transcript of Motion Hearing)(MacDonald, Mary) (Entered: 07/26/2017)
214 Transcript of Motion Hearing held on June 26, 2017, before Judge Mark G. Mastroianni. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 8/18/2017. Redacted Transcript Deadline set for 8/28/2017. Release of Transcript Restriction set for 10/26/2017. (Scalfani, Deborah) (Entered: 07/28/2017)
215 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/28/2017)

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 24 of 29

08/02/2017 08/02/2017 08/10/2017 08/11/2017 08/11/2017 08/11/2017 08/11/2017
10/03/2017 10/05/2017
10/18/2017

216 ELECTRONIC NOTICE Setting Hearing on Plaintiffs' 212 MOTION to Amend Scheduling Order ISSUED: A Motion Hearing is set for 8/22/2017 at 11:00 AM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 08/02/2017)
217 NOTICE by City of Springfield of Change of Attorney Information (MacDonald, Mary) (Entered: 08/02/2017)
218 Joint MOTION to Modify The Amended Scheduling Order , to Moot ECF Nos. 212 and 213, and to Cancel the Case Management Conference Scheduled for August 22, 2017 by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S..(Bohenek, Matthew) (Entered: 08/10/2017)
219 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting 218 Parties Joint to Modify the Scheduling Order. The Motion Hearing set for 8/22/2017 is cancelled. A Scheduling Order shall enter staying discovery to 10/2/2017 and extending the deadline for filing Motions for Leave to Amend the Pleadings until a date to be established at a Case Management Conference set for 10/5/2017 at 3:00 P.M. (Finn, Mary) (Entered: 08/11/2017)
220 Set/Reset Hearings: Case Management Conference set for 10/5/2017 03:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Finn, Mary) (Entered: 08/11/2017)
221 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered finding as moot 212 Motion to Amend the Scheduling Order, in light of the parties' agreement to an amended scheduling order. (Finn, Mary) (Entered: 08/11/2017)
222 Magistrate Judge Katherine A. Robertson: ORDER entered. AMENDED SCHEDULING ORDER: Discovery is STAYED until the earliest of the following (a) the First Circuit's Final resolution of Pltfs' Rule 23(f) Petition, (b) a decision from this Court on Defts' Motion for Judgment on the Pleadings, or, (c) October 2, 2017. A Case Management Conference will be scheduled for 10/5/2017 03:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. to discuss, if necessary, whether a discovery stay need to continue in the event that neither the Rule 23(f) Petition nor the Motion for Judgment on the Pleadings has been decided by that time. The deadline to Amend the Pleadigns is STAYED until thirty (30) days after the date of the Frist Circuit's final resolution of Pltfs' Rule 23(f) Petition or the date of issuance of a decision on Defts' Motion for Judgment on the Pleadings by this Court, whichever is later. (Finn, Mary) (Entered: 08/11/2017)
223 NOTICE of Withdrawal of Appearance by Robert D. Fleischner (Fleischner, Robert) (Entered: 10/03/2017)
224 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Case Management Conference held on 10/5/2017. Attorneys Present: Elizabeth M. Bresnahan, Sandra J. Staub, Lisa C. deSousa, Mary Ellen MacDonald and Melinda M. Phelps. Colloquy re: status of the case. Stay of discovery extended until the earliest of the following: (a) the First Circuit's final resolution of Plaintiffs' Rule 23(f) Petition; or (b) a decision from this Court on Defendants' Motion for Judgment on the Pleadings. Appeal rights to the Court's decision explained. The parties agreed that limited discovery regarding S.S. (as discussed at the hearing) will be propounded. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Calderon, Melissa) (Entered: 10/10/2017)
225 Transcript of Motion Hearing held on October 5, 2017, before Magistrate Judge Katherine A. Robertson. No Reporter Used: Digital Recording transcribed by Maryann Young. The Transcript may be purchased through Maryann Young at youngtranscriptionservices@gmail.com, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 11/8/2017. Redacted Transcript Deadline set for 11/20/2017. Release of Transcript Restriction set for 1/16/2018. (Scalfani, Deborah) (Entered: 10/18/2017)

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 25 of 29

10/18/2017
11/15/2017 11/29/2017 11/30/2017 11/30/2017 11/30/2017 11/30/2017 12/01/2017 12/06/2017 12/11/2017
12/28/2017 01/16/2018 01/16/2018
01/17/2018
01/26/2018 01/29/2018

226 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/18/2017)
227 MOTION to Amend Defendant's Motion to Amend Case Caption and/or Substitute Parties by City of Springfield. (Attachments: # 1 Exhibit 1 − Birth Certificate, # 2 Exhibit 2 − Affidavit of Melinda Phelps, Esq.)(MacDonald, Mary) (Attachment 1 replaced on 11/16/2017) (Lindsay, Maurice). (Entered: 11/15/2017)
228 Opposition re 227 MOTION to Amend Defendant's Motion to Amend Case Caption and/or Substitute Parties filed by Disability Law Center, Inc., Parent/Professional Advocacy League, S. S.. (Bresnahan, Elizabeth) (Entered: 11/29/2017)
229 STIPULATION of Dismissal Without Prejudice by S. S.. (Bresnahan, Elizabeth) The docket text have modified on 12/1/2017 to show the correct filing party and the original document have been replaced with a modified copy because a signature was missing from the original. (Lindsay, Maurice). (Entered: 11/30/2017)
230 MOTION to Intervene by S B. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bresnahan, Elizabeth) (Entered: 11/30/2017)
231 MEMORANDUM in Support re 230 MOTION to Intervene filed by S B. (Bresnahan, Elizabeth) (Entered: 11/30/2017)
232 DECLARATION re 230 MOTION to Intervene of Jeff Goldman by S B. (Attachments: # 1 Exhibit 1)(Goldman, Jeff) (Entered: 11/30/2017)
233 MOTION to Hold in Abeyance and to Schedule a Hearing by Disability Law Center, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Goldman, Jeff) (Entered: 12/01/2017)
234 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting in part 233 Plaintiffs Motion to Hold in Abeyance and to Schedule a Hearing. The court will hold in abeyance all pending motions until December 15, 2017, the date when Defendants response to the motion is due. (Lindsay, Maurice) (Entered: 12/07/2017)
235 RESPONSE to Motion re 233 MOTION to Hold in Abeyance and to Schedule a Hearing Defendants' Response to the Motion of the Disability Law Center to Hold In Abeyance and to Schedule a Hearing filed by City of Springfield, Springfield Public Schools. (Attachments: # 1 Exhibit A − Email, # 2 Exhibit B − Declaration of Martha von Mering)(MacDonald, Mary) (Entered: 12/11/2017)
236 Opposition re 230 MOTION to Intervene Defendants' Opposition to Motion to Intervene filed by City of Springfield, Springfield Public Schools. (MacDonald, Mary) (Entered: 12/28/2017)
237 NOTICE of Appearance by Stephen L. Holstrom on behalf of City of Springfield, Springfield Public Schools (Holstrom, Stephen) (Entered: 01/16/2018)
238 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered REFERRING MOTIONS 230 MOTION to Intervene filed by S B, 227 MOTION to Amend Defendant's Motion to Amend Case Caption and/or Substitute Parties filed by City of Springfield to Magistrate Judge Robertson. (Bartlett, Timothy) Motions referred to Katherine A. Robertson. (Entered: 01/16/2018)
239 ELECTRONIC NOTICE Setting Hearing on Motion Defendant's 227 MOTION to Amend Case Caption and/or Substitute Parties and 230 MOTION to Intervene ISSUED: A Motion Hearing is set for 1/29/2018 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 01/17/2018)
240 Withdrawal of motion: 230 MOTION to Intervene filed by S B, 231 Memorandum in Support of Motion filed by S B.. (Bresnahan, Elizabeth) (Entered: 01/26/2018)
241 ELECTRONIC NOTICE Canceling Hearing. In light of counsel's representation by telephone that Defendant's 227 MOTION to Amend Case Caption and/or Substitute Parties and 230 MOTION to Intervene are MOOT, the Motion Hearing set for

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 26 of 29

01/29/2018 02/16/2018
03/05/2018 03/05/2018 03/08/2018 03/12/2018 03/12/2018 03/14/2018 03/14/2018 04/02/2018 04/30/2018 05/01/2018

1/29/2018 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson is hereby VACATED. (Calderon, Melissa) (Entered: 01/29/2018)
242 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered finding as moot Defendant's 227 MOTION to Amend Case Caption and/or Substitute Parties in light of the Stipulation of Dismissal, without prejudice, filed on 11/30/2017 (See Dkt. No. 229 .) (Calderon, Melissa) (Entered: 01/29/2018)
243 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered. The parties' briefing on Defendants' 203 Motion for Judgment on the Pleadings discuss the relevance of the IDEA exhaustion requirement within the standing analysis, but do not address the independent application of the IDEA exhaustion requirement to claims brought by PPAL and DLC. Having previously discussed the relevance of IDEA exhaustion to the individual and proposed class plaintiffs, the court believes a complete analysis of the pending Motion for Judgment on the Pleadings should include consideration of the application of the IDEA exhaustion requirement to PPAL and DLC. See U.S. Nat. Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 446 (1993) ("[A] court may consider an issue 'antecedent to... and ultimately dispositive of' the dispute before it, even an issue the parties fail to identify and brief.") (citing Arcadia v. Ohio Power Co., 498 U.S. 73,77 (1990)). The parties are, therefore, directed to submit supplemental briefs to the court addressing the relevance of the IDEA exhaustion requirement, on its own rather than as a consideration related to standing, to a determination of whether judgment on the pleadings is appropriate at this stage of the litigation. As the scope of the IDEA exhaustion requirement is a familiar issue in this litigation, the parties' briefs shall not exceed ten (10) pages and are due no later than Monday, March 5, 2018. (Bartlett, Timothy) (Entered: 02/16/2018)
244 MEMORANDUM OF LAW by Domenic Sarno, City of Springfield, Springfield Public Schools to 203 MOTION for Judgment on the Pleadings . (deSousa, Lisa) (Entered: 03/05/2018)
245 Supplemental MEMORANDUM in Opposition re 203 MOTION for Judgment on the Pleadings filed by Disability Law Center, Inc., Parent/Professional Advocacy League. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Bohenek, Matthew) (Entered: 03/05/2018)
246 Joint MOTION for Settlement Conference by Domenic Sarno, City of Springfield, Springfield Public Schools.(Phelps, Melinda) (Entered: 03/08/2018)
247 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 246 JOINT MOTION for Judicial Settlement Conference. A separate order referring this matter to Magistrate Judge Kenneth P. Neiman for an ADR Conference shall issue. (Calderon, Melissa) (Entered: 03/12/2018)
248 REFERRING CASE to Alternative Dispute Resolution. Referred to Magistrate Judge Kenneth P. Neiman. (Calderon, Melissa) (Entered: 03/12/2018)
249 ELECTRONIC NOTICE of ADR Conference: Alternative Dispute Resolution Hearing set for 4/2/2018 at 10:00 AM in Hampden Courtroom before Magistrate Judge Kenneth P. Neiman. (Figueroa, Tamara) (Entered: 03/14/2018)
250 Magistrate Judge Kenneth P. Neiman: ORDER entered. Order with Respect to Mediation. See ORDER for details. (Figueroa, Tamara) (Entered: 03/14/2018)
252 ELECTRONIC NOTICE of ADR Conference: Telephone Conference set for 4/24/2018 12:00 PM before Magistrate Judge Kenneth P. Neiman. Alternative Dispute Resolution Hearing set for 5/1/2018 10:00 AM in Hampden Courtroom before Magistrate Judge Kenneth P. Neiman. (Figueroa, Tamara) (Entered: 04/04/2018)
254 Remark: Call−in information sent to both counsels appearing via telephone. (Figueroa, Tamara) (Entered: 04/30/2018)
256 ELECTRONIC NOTICE of ADR Conference: Telephone Conference set for 5/18/2018 at 12:00 PM before Magistrate Judge Kenneth P. Neiman. (Figueroa, Tamara) (Entered: 05/01/2018)

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05/01/2018 05/18/2018 05/23/2018 06/01/2018 06/01/2018 06/14/2018 07/19/2018 08/03/2018 08/09/2018
08/15/2018 08/17/2018 08/20/2018 08/21/2018 08/21/2018 08/21/2018 08/21/2018

257 Remark: E−mail sent to all parties with Call In information for Telephone Conference scheduled on 5/18/18. (Figueroa, Tamara) (Entered: 05/01/2018)
259 ELECTRONIC NOTICE of ADR Conference: Telephone Conference set for Defendants' counsel on 6/1/2018 at 9:00 AM before Magistrate Judge Kenneth P. Neiman. (Figueroa, Tamara) (Entered: 05/18/2018)
260 ELECTRONIC NOTICE of ADR Conference: Alternative Dispute Resolution Hearing set for 6/14/2018 at 10:00 AM in Hampden Courtroom before Magistrate Judge Kenneth P. Neiman. (Figueroa, Tamara) (Entered: 05/23/2018)
261 Electronic Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman: Telephone Conference held on 6/1/2018. Start time for 6/14/2018 ADR is moved to 9:30 a.m. (Court Reporter: None.) (Healy, Bethaney) (Entered: 06/01/2018)
262 ELECTRONIC NOTICE of Hearing. Alternative Dispute Resolution Hearing moved to 6/14/2018 at 9:30 AM in Hampden Courtroom before Magistrate Judge Kenneth P. Neiman. Please note change in time. (Healy, Bethaney) (Entered: 06/01/2018)
264 REPORT of Alternative Dispute Resolution Provider. (Figueroa, Tamara) (Entered: 06/14/2018)
265 Judge Mark G. Mastroianni: ORDER entered. MEMORANDUM AND ORDER. For the reasons discussed, the court finds PPAL and DLC have associational standing, but grants Defendants' Motion for Judgment on the Pleadings based on the absence of IDEA exhaustion. (Bartlett, Timothy) (Entered: 07/20/2018)
266 MOTION to Intervene Solely for Purposes of Appeal by M. W..(Bresnahan, Elizabeth) (Entered: 08/03/2018)
267 NOTICE OF APPEAL re 191 , 243 , 265 by Disability Law Center, Inc., Parent/Professional Advocacy League, M. W. Filing fee: $ 505, receipt number 0101−7267409 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 8/29/2018. (Goldman, Jeff) Modified on 8/15/2018 (Pacho, Arnold). (Entered: 08/09/2018)
268 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 267 Notice of Appeal. (Pacho, Arnold) (Main Document 268 replaced on 8/15/2018. Copy of docket sheet added to appeal record) (Pacho, Arnold). (Entered: 08/15/2018)
269 MEMORANDUM in Opposition re 266 MOTION to Intervene Solely for Purposes of Appeal filed by City of Springfield, Springfield Public Schools. (Attachments: # 1 Affidavit w−exhibits)(Phelps, Melinda) (Entered: 08/17/2018)
270 USCA Case Number 18−1778 for 267 Notice of Appeal filed by Disability Law Center, Inc., M. W., Parent/Professional Advocacy League. (Paine, Matthew) (Entered: 08/20/2018)
271 Case no longer referred to Magistrate Judge Katherine A. Robertson. (Calderon, Melissa) (Entered: 08/21/2018)
272 MOTION for Leave to File Reply Brief in Further Support of Motion to Intervene by M. W.. (Attachments: # 1 Exhibit Reply Brief)(Bohenek, Matthew) (Entered: 08/21/2018)
273 DECLARATION re 272 MOTION for Leave to File Reply Brief in Further Support of Motion to Intervene of L.N. by M. W.. (Attachments: # 1 Exhibit Ex. 1 to L.N. Decl.)(Bohenek, Matthew) (Entered: 08/21/2018)
274 DECLARATION re 272 MOTION for Leave to File Reply Brief in Further Support of Motion to Intervene of Deborah A. Dorfman by M. W.. (Attachments: # 1 Exhibit Ex.

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 28 of 29

08/23/2018 08/24/2018 08/27/2018 08/27/2018 09/05/2018
09/05/2018

1 to D. Dorfman Decl., # 2 Exhibit Ex. 2 to D. Dorfman Decl.)(Bohenek, Matthew) (Entered: 08/21/2018)
275 NOTICE OF APPEAL re 265 MEMORANDUM and ORDER by City of Springfield, Springfield Public Schools Filing fee: $ 505, receipt number 0101−7289250 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 9/12/2018. (Phelps, Melinda) Modified on 8/24/2018 to Correct Docket Text and CM/ECF Document Link) (Paine, Matthew). (Entered: 08/23/2018)
276 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 275 Notice of Appeal. (Paine, Matthew) (Entered: 08/24/2018)
277 USCA Case Number 18−1813 for 275 Notice of Appeal filed by City of Springfield, Springfield Public Schools. (Paine, Matthew) (Entered: 08/27/2018)
278 Opposition re 272 MOTION for Leave to File Reply Brief in Further Support of Motion to Intervene filed by City of Springfield, Springfield Public Schools. (Phelps, Melinda) (Entered: 08/27/2018)
279 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting 266 Motion to Intervene Solely for Purposes of Appeal. The general rule within our judicial system is that all issues in a case should be decided in a single appeal taken after the entry of a final judgment. Microsoft Corp. v. Baker, _ U.S. _, 137 S. Ct. 1702, 1712 (2017). Intervenor argues that following the courts July 19, 2018 order granting Defendants motion for judgment on the pleadings, he should be permitted to intervene in this action, solely for the purpose of pursuing an appeal of the courts earlier order denying the motion for class certification. In United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977), the Supreme Court affirmed a lower court decision allowing a motion to intervene filed within the appeal period by an individual seeking to appeal a denial of a motion for class certification. As in this case, the intervenor and other members of the putative class had not exhausted their administrative remedies, and the failure to exhaust was both one of the reasons the motion for class certification was denied and a reason why the intervenor could not simply join the litigation in their individual capacity. The intervenor, here, filed his motion to intervene fifteen days after this court entered its final order in this case, granting Defendants motion for judgment on the pleadings. Previously, in November of 2017, a stipulation of dismissal was entered as to S.S., the original named plaintiff and proposed class representative. That stipulation of dismissal did not start the clock for taking a direct appeal of the courts order denying class certification because it did not resolve[] all of the claims of all of the parties to the case. Love v. Wal−Mart Stores, Inc, 865 F.3d 1322, 125 (11th Cir. 2017) (finding time for filing of appeal began to run when stipulation of dismissal as to all claims and plaintiffs was filed with the district court); see also Microsoft Corp., 137 S. Ct. at 1715 (Plaintiffs in putative class actions cannot transform a tentative interlocutory order... into a final judgment simply by dismissing their claims with prejudicesubject, no less, to the right to revive those claims if the denial of class certification is reversed on appeal.) The intervenor, a student who would have been a member of the class this court declined to certify, is, therefore, permitted to intervene, solely so that he may pursue an appeal of the courts denial of the motion to certify class on behalf of those students who attended the Springfield Public Day School and have not exhausted the administrative remedies available under the IDEA. Finally, as a student who had not previously exhausted administrative remedies, the intervenor had no basis for seeking to intervene until this court entered final judgment in this case, thus making the earlier class certification denial appealable pursuant to the final−judgment rule. (Lindsay, Maurice) (Entered: 09/05/2018)
280 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered finding as moot 272 Motion for Leave to File Reply Brief in Further Support of Motion to Intervene. (Lindsay, Maurice) (Entered: 09/05/2018)

Case: 3:14-cv-30116 As of: 05/19/2020 10:56 PM EDT 29 of 29

09/10/2018
09/10/2018 09/10/2018 09/25/2018 10/01/2018 10/05/2018
10/09/2018 10/11/2018 10/15/2018 08/08/2019 08/08/2019 08/29/2019

281 NOTICE OF APPEAL as to 265 Memorandum & ORDER, 243 Order,,,,,, 191 Order on Motion to Certify Class,,, Order on Motion in Limine,,, Order on Motion for Hearing,, by M. W. Filing fee: $ 505, receipt number 0101−7310939 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 10/1/2018. (Goldman, Jeff) (Entered: 09/10/2018)
282 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 281 Notice of Appeal. (Paine, Matthew) (Entered: 09/10/2018)
283 USCA Case Number 18−1867 for 281 Notice of Appeal filed by M. W.. (Paine, Matthew) (Entered: 09/10/2018)
284 Judge Mark G. Mastroianni: ORDER entered. JUDGMENT for defendants. (Bartlett, Timothy) (Entered: 09/25/2018)
285 JUDGMENT of the USCA (17−8001): The petition is DENIED. (Paine, Matthew) (Entered: 10/02/2018)
286 NOTICE OF APPEAL as to 279 Order on Motion to Intervene,,,,,,,,,,, by City of Springfield, Springfield Public Schools Fee Status: State or Local Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 10/25/2018. (deSousa, Lisa) (Entered: 10/05/2018)
287 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 286 Notice of Appeal. (Paine, Matthew) (Entered: 10/09/2018)
288 USCA Case Number 18−1976 for 286 Notice of Appeal filed by City of Springfield, Springfield Public Schools. (Paine, Matthew) (Entered: 10/11/2018)
289 Filing fee/payment: $505.00, receipt number SPR003848 for 286 Notice of Appeal, (Lindsay, Maurice) (Entered: 10/17/2018)
290 OPINION of USCA as to 267 Notice of Appeal filed by Disability Law Center, Inc., M. W., Parent/Professional Advocacy League, 275 Notice of Appeal filed by City of Springfield, Springfield Public Schools, 281 Notice of Appeal filed by M. W., 286 Notice of Appeal filed by City of Springfield, Springfield Public Schools. (Paine, Matthew) (Entered: 08/09/2019)
291 USCA Judgment as to 267 Notice of Appeal filed by Disability Law Center, Inc., M. W., Parent/Professional Advocacy League, 275 Notice of Appeal filed by City of Springfield, Springfield Public Schools, 281 Notice of Appeal filed by M. W., 286 Notice of Appeal filed by City of Springfield, Springfield Public Schools. AFFIRMED... (Paine, Matthew) (Entered: 08/09/2019)
292 MANDATE of USCA as to 267 Notice of Appeal filed by Disability Law Center, Inc., M. W., Parent/Professional Advocacy League, 275 Notice of Appeal filed by City of Springfield, Springfield Public Schools, 281 Notice of Appeal filed by M. W., 286 Notice of Appeal filed by City of Springfield, Springfield Public Schools. Appeals 267 , 275 , 281 , 286 Terminated. (Pacho, Arnold) (Entered: 08/30/2019)

 
 Case 3:14-cv-30116-MGM Document 1 Filed 06/27/14 Page 1 of 21

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

S.S., a minor, by his mother, S.Y., on behalf of himself )

and other similarly situated students, and the

)

Parent/Professional Advocacy League,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF SPRINGFIELD, MASSACHUSETTS;

)

DOMENIC SARNO, in his official capacity as Mayor )

of City of Springfield; SPRINGFIELD PUBLIC

)

SCHOOLS; DANIEL J. WARWICK, in his official

)

capacity as Superintendent of Springfield Public

)

Schools,

)

Defendants.

) )

CIVIL ACTION NO. 14-30116

CLASS ACTION COMPLAINT

I. INTRODUCTION

1. The City of Springfield (“City”), Springfield Public Schools (“SPS”), Mayor

Sarno, and Superintendent Warwick (collectively “Defendants”) operate a discriminatory public

school system that consigns hundreds of children with a mental health disability to the separate

and inferior Public Day School. The Public Day School is not a therapeutic learning

environment. Children in the Public Day School do not have the same opportunity to learn and

to graduate that is afforded their peers without a disability in Springfield’s other schools

(“neighborhood schools”). Academic expectations are low. Education is not the primary

mission of the Public Day School, and students make little academic progress there.

2. Instead of fostering learning, the focus of the Public Day School is on behavior

control using drastic methods including dangerous physical restraints, inappropriate forced

isolation in padded rooms, and repeated arrests and suspensions for minor offenses. Far from

Case 3:14-cv-30116-MGM Document 1 Filed 06/27/14 Page 2 of 21
being therapeutic, placement in the Public Day School is more likely to exacerbate a child’s mental health condition than improve it.
3. The Public Day School is also physically segregated from SPS’s neighborhood schools. It is located on three campuses and students consigned to the Public Day School are afforded zero opportunity to interact with students in SPS’s neighborhood schools.
4. Tragically, the children placed in the Public Day School do not need to be there. These are children of great promise. They could be educated in neighborhood schools and given the same opportunity to progress academically and graduate that is enjoyed by their peers without a disability. These children can be educated successfully in SPS’s neighborhood schools with reasonable modification of SPS’s programs and services and with the aid of appropriate school-based behavioral services.
5. Defendants’ failure to reasonably modify SPS’s programs and services, and instead placing these children with a mental health disability in a wholly segregated educational setting, violates the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq.
6. The ADA mandates that Defendants (i) provide children with a mental health disability educational opportunities that are equal to and as effective as those provided other students; and (ii) serve students with a mental health disability in the most integrated setting appropriate to their needs, that is, the setting in which they have the greatest opportunity to be engaged with their peers without a disability. By warehousing students with a mental health disability in the Public Day School, Defendants are violating both of the ADA’s legal mandates.
7. The ADA imposes on Defendants the obligation to reasonably modify SPS’s programs and services to avoid discrimination. Providing children with a mental health disability access to school-based behavior services -- to afford them equal educational
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Case 3:14-cv-30116-MGM Document 1 Filed 06/27/14 Page 3 of 21
opportunity and to enable them to be educated in neighborhood schools -- is a reasonable modification required by the ADA.
8. The Massachusetts Department of Elementary and Secondary Education (“DESE”) has cited SPS for many of the deficiencies alleged here. In an April 2014 “Coordinated Program Review Report of Findings” (“Program Review Report”), the DESE found SPS in violation of federal and state law as a result of, among other things: removing students with disabilities from regular classrooms without appropriate justification; failing to provide needed behavior services to children with a mental health disability; and denying children in the Public Day School the opportunity to participate in extra-curricular and vocational programs.
9. Plaintiff S.S., a fifteen year-old with a mental health disability who is currently segregated in the Public Day School, brings this suit on behalf of himself and other similarly situated students. Plaintiff Parent/Professional Advocacy League (“PPAL”) is a statewide, grassroots family organization that advocates for improved access to services for children with a mental health disability and their families. Plaintiffs seek injunctive and declaratory relief for ongoing violations of the ADA, including an order that Defendants provide Plaintiff S.S. and the Plaintiff class with school-based behavior services in neighborhood schools to afford them an equal educational opportunity and enable them to be educated in neighborhood schools with their peers without a disability. II. JURISDICTION AND VENUE
10. This court has jurisdiction over this action under Title II of the ADA, 42 U.S.C. §§ 12131-12133, and 28 U.S.C. §§ 1331. Declaratory relief is available pursuant to 28 U.S.C. §
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Case 3:14-cv-30116-MGM Document 1 Filed 06/27/14 Page 4 of 21
2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. § 2202, and Rule 65 of the Federal Rules of Civil Procedure.
11. Venue is proper in the District of Massachusetts pursuant to 28 U.S.C. § 1391(b)(2), since all of the acts and omissions giving rise to these claims occurred in the Commonwealth of Massachusetts. Venue is proper in the Western Division since the individual Plaintiff and all of the Defendants reside or are located in that Division. Local R. 40.1(D)(1)(a). III. EXHAUSTION OF ADMINISTRATIVE REMEDIES
12. Plaintiff S.S. filed a Request for Hearing with the Massachusetts Bureau of Special Education Appeals (“BSEA”) on behalf of himself and a class of similarly situated students on June 18, 2013, and an Amended Request on July 22, 2013, seeking injunctive and declaratory relief. In particular, S.S. contended that SPS did not reasonably modify its programs and services to ensure that he and members of the class are afforded equal educational opportunity, including the opportunity to receive an education that is equal to and as effective as that provided other students and to receive educational programs and services in the most integrated setting appropriate to their needs.
13. S.S. contended that SPS segregates him and similarly situated students in the separate and inferior Public Day School in violation of the ADA.
14. On October 15, 2013, upon the motion of SPS, a BSEA Hearing Officer dismissed the class claims on the ground that the BSEA had no jurisdiction to decide them.
15. An administrative hearing before the BSEA was held in this matter on January 22-24, 2014 to address S.S.’s individual claims.
16. On March 27, 2014, the BSEA Hearing Officer issued a ruling dismissing all of S.S.’s ADA claims. The Hearing Officer further ruled that S.S.’s placement and Individualized
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Case 3:14-cv-30116-MGM Document 1 Filed 06/27/14 Page 5 of 21
Education Plan were reasonably calculated to provide him a free appropriate public education under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400, et seq., M.G.L. c. 30A and c. 71B, and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), codified at 29 U.S.C.§ 794.
17. Having exhausted administrative remedies on behalf of himself and a class of similarly situated students, S.S. now files this Class Action Complaint seeking relief under the ADA. S.S. does not appeal the BSEA Hearing Officer’s decision regarding his claims under the IDEA, M.G.L. c. 30A and c. 71B, or Section 504. IV. PARTIES
A. Plaintiffs 18. Plaintiff S.S. is an African American 15 year-old student with a mental health disability enrolled in SPS. He resides with his mother and younger siblings in Springfield, Massachusetts. His mother, S.Y., brings this action on his behalf. 19. Plaintiff PPAL is a statewide, grassroots family organization that advocates for improved access to services for children with a mental health disability and their families. Founded in 1991, PPAL is the Massachusetts state affiliate of the Federation of Families for Children’s Mental Health, a national family-run organization that provides leadership at the national level. There are more than 7,000 Massachusetts families who are constituents in PPAL’s network, including Plaintiff S.S. and his mother. In the twelve months prior to the filing of this Complaint, more than 150 Springfield families have sought help from or joined PPAL’s network. Many of PPAL’s constituents from Springfield (i.e., families who have sought help from or joined PPAL’s network) have children with a mental health disability enrolled in SPS, including children who have been placed in the Public Day School or are at risk of being
- 5 -

Case 3:14-cv-30116-MGM Document 1 Filed 06/27/14 Page 6 of 21
transferred by SPS into the Public Day School. PPAL’s constituents, including families in Springfield, have a direct and active role in developing PPAL’s advocacy activities.
20. At least fifty-one percent of the members of PPAL’s Board of Directors are parents of children with a mental health disability.
21. PPAL’s primary place of business is 45 Bromfield St., Boston, Massachusetts 02108, and it has an additional office in Worcester, Massachusetts.
B. Defendants 22. Defendant City of Springfield operates and funds SPS, including all public school programs, services, and activities. The City is a public entity as defined by Title II of the ADA. 42 U.S.C. § 12131. The City’s offices are located at 36 Court Street, Springfield, MA 01103. 23. Defendant Domenic Sarno is sued in his official capacity as the Mayor of the City of Springfield. As Mayor, Defendant Sarno supervises and is ultimately responsible for the operations of the executive departments of the City, including SPS and its compliance with federal law. He annually submits a budget to the City Council for funding SPS. By City Charter, Mayor Sarno is the Chairman of the Springfield School Committee. Defendant Sarno’s business offices are located at 36 Court Street, Springfield, MA 01103. 24. Defendant Springfield Public Schools is a public entity as defined by Title II of the ADA. 42 U.S.C. § 12131. SPS’s business offices are located at 1550 Main Street, Springfield, MA 01103. 25. Defendant Daniel J. Warwick is sued in his official capacity as the Superintendent of the Springfield Public Schools. Pursuant to M.G.L. c. 71, § 37, he is appointed by the School Committee. Defendant Warwick is responsible for the daily operations of SPS, including its
- 6 -

Case 3:14-cv-30116-MGM Document 1 Filed 06/27/14 Page 7 of 21

programs and services for students with a disability. Defendant Warwick’s business offices are

located at 1550 Main Street, Springfield, MA 01103.

V. CLASS ACTION ALLEGATIONS

26. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure,

Plaintiff S.S. brings this suit as a class action on his own behalf and on behalf of the following

class: All students placed now or in the future in SPS’s Public Day School.

27. The class is so numerous that joinder of all members is impracticable. During the

2013-2014 school year, approximately 233 students with a mental health disability were enrolled

in the Public Day School. Joinder is also impracticable because SPS routinely enrolls new class

members in the Public Day School and most class members lack the means to maintain

individual actions.

28. There are questions of law and fact common to the class, including whether

Defendants are violating the ADA by, among other actions, employing policies and practices

that:

i.

Deny S.S. and members of the class an opportunity to participate in and

benefit from educational services that is equal to that afforded students

without a mental health disability;

ii.

Deny S.S. and members of the class educational services that are as

effective in affording equal opportunity to obtain the same result, gain the

same benefit, or reach the same level of achievement as that provided

students without a mental health disability;

iii.

Fail to provide S.S. and members of the class educational programs and

services in the most integrated setting appropriate to their needs by

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Case 3:14-cv-30116-MGM Document 1 Filed 06/27/14 Page 8 of 21

unnecessarily segregating Plaintiff and class members in the Public Day

School;

iv.

Fail to reasonably modify SPS’s programs and services as needed to avoid

discrimination; and

v.

Utilize methods of administration that have the effect of defeating or

substantially impairing the accomplishment of the objectives of

Defendants’ educational programs to educate and meet the behavioral

service needs of students with a mental health disability, including S.S.

and the class.

29. The named Plaintiff S.S.’s claims are typical of the claims of the class.

30. The Plaintiff class includes members who are PPAL constituents.

31. Plaintiff S.S. will fairly and adequately protect the interests of the class. Plaintiff

S.S. will vigorously represent the interests of the unnamed class members, and all members of

the proposed class will benefit from Plaintiff S.S.’s efforts. There is no conflict between the

interests of Plaintiff S.S. and the proposed class.

32. Defendants have acted or will continue to act on grounds generally applicable to

the Plaintiff class, thereby making appropriate injunctive and declaratory relief with respect to

the class as a whole.

VI. THE AMERICANS WITH DISABILITIES ACT

33. Congress enacted the ADA, 42 U.S.C. § 12101 et seq., to provide a clear and

comprehensive national mandate for the elimination of discrimination against individuals with

disabilities and to provide strong and consistent standards for identifying such discrimination. 42

U.S.C. § 12101(b)(1)&(2).

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34. The ADA is based on Congress’s findings that, inter alia, (i) “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem,” 42 U.S.C. § 12101(a)(2), and (ii) “individuals with disabilities continually encounter various forms of discrimination, including … relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.” 42 U.S.C. § 12101(a)(5).
35. In enacting the ADA, Congress also found that “discrimination against individuals with disabilities persists in such critical areas as … education.” 42 U.S.C. § 12101(a)(3).
36. Title II of the ADA 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.” 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130.
37. Title II of the ADA applies to all of the activities of public entities, including providing education. Each Defendant is either a public entity subject to Title II of the ADA or an official responsible for supervising the operations of a public entity subject to Title II of the ADA. 42 U.S.C. § 12131(1).
38. The discrimination prohibited under Title II of the ADA includes the needless isolation or segregation of persons with disabilities. Olmstead v. L.C., 527 U.S. 581, 600 (1999) (“unjustified institutional isolation of persons with disabilities is a form of discrimination”); see also 2011 Statement of the US Department of Justice on Enforcement of the Integration Mandate of Title II of the ADA and Olmstead, June 22, 2011.
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39. The ADA directs the Attorney General to promulgate regulations enforcing Title

II of the ADA and provides guidance on their content. The regulations promulgated by the

Attorney General require public entities to “make reasonable modifications” to their programs

and services “when the modifications are necessary to avoid discrimination.” 28 C.F.R.

§ 35.130(b)(7). The regulations also require public entities to “administer services, programs,

and activities in the most integrated setting appropriate to the needs of qualified individuals with

disabilities,” 28 C.F.R. § 35.130(d), which the Attorney General has defined as “a setting that

enables individuals with disabilities to interact with non-disabled persons to the fullest extent

possible.” 28 C.F.R. pt. 35, App. A, p. 450.

40. The regulations also specify that it is unlawful discrimination for a public entity

to:

i.

“Afford a qualified individual with a disability an opportunity to

participate in or benefit from the aid, benefit, or service that is not equal to

that afforded others,” 28 C.F.R. § 35.130(b)(1)(ii);

ii.

“Provide a qualified individual with a disability with an aid, benefit, or

service that is not as effective in affording equal opportunity to obtain the

same result, to gain the same benefit, or to reach the same level of

achievement as that provided to others,” 28 C.F.R. § 35.130(b)(1)(iii); or

iii.

“[U]tilize criteria or methods of administration … [t]hat have the purpose

or effect of defeating or substantially impairing accomplishment of the

objectives of the public entity’s program with respect to individuals with

disabilities,” 28 C.F.R. § 35.130(b)(3)(ii).

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VII. STATEMENT OF FACTS

A. The Springfield Public Schools

41. Defendant SPS is the second largest school district in Massachusetts, providing

educational programs and services to approximately 25,826 children. Its annual budget for the

fiscal year 2014 is $357,868,724. Approximately 62.2% of the children served are Hispanic and

20.2% are African American.

42. SPS has identified approximately 5,032 (19.3%) of its students as having a

disability and approximately 640 students (2.4% of all students) as having “emotional

disturbance,” a classification used by SPS to refer to students with a mental health disability that

interferes with their education. Of the approximately 640 so identified, 233 students (roughly

one-third of all students classified as having an “emotional disturbance”) have been assigned to

the Public Day School. The Public Day School has separate campuses for elementary, middle,

and high school students.

43. SPS operates approximately 50 other schools in addition to the Public Day

School, of which 42 are neighborhood elementary, middle, or high schools.

44. In its April 2014 Program Review Report, DESE found that:

i.

SPS “does not consistently consider positive behavioral supports or the

need for a functional behavioral assessment for students whose behavior

repeatedly impedes learning.” DESE, Program Review Report at 48.

ii.

For students with disabilities who have had multiple behavioral problems,

SPS “does not consider functional behavioral assessments or behavioral

interventions, services or modifications to address the behavior so that it

does not re-occur.” Id. at 50.

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iii.

SPS “does not provide professional development to all staff on the

mandated special education topics, including state and federal special

education requirements, local policies and procedures for special

education implementation, and methods of collaboration to accommodate

diverse learning styles in the general education environment.” Id. at 55-

56.

iv.

SPS removes students with disabilities from regular classrooms without

appropriate justification; fails to provide these students with school-based

behavior services; and denies children in the Public Day School the

opportunity to participate in extra-curricular and vocational programs. Id.

at 27-28.

45. Defendants have not reasonably modified neighborhood schools to provide

school-based behavior services for children with a mental health disability. For students like

S.S. and members of the class, the essential components of school-based behavior services,

which Defendants fail to provide, are: (a) a comprehensive assessment, including determination

of the purpose and triggers for the child’s behavior; (b) a school-based intervention plan that

relies on positive support, social skills training, a care coordinator, and adjustments as needed to

curriculum or schedule; (c) training for school staff and parents in implementing the plan; and

(d) coordination with non-school providers involved with the child (collectively, “school-based

behavior services”).

46. There is a professional consensus that such school-based behavior services are

necessary to afford children like S.S. and Plaintiff class members an equal opportunity to

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advance academically and graduate and the opportunity to be educated in neighborhood schools along with their peers without a disability.
47. Instead of providing these school-based behavior services, Defendants routinely transfer such students to the Public Day School, where they receive an inferior education and are separate from their peers.
B. Springfield’s Public Day School 48. The Public Day School is exclusively for students with a mental health disability. It starts at kindergarten and extends through grade 12 (and up to age 21). During the 2013-14 school year, of the 233 students reported to be in the Public Day School program, 42 were at the elementary level, 63 at the middle school level, and 128 at the high school level. 49. The students in the Public Day School have many talents and strengths. They have the same aspirations as other SPS students. They have hobbies, enjoy sports, and would like to participate in extracurricular activities. After they graduate from high school, they would like to get good jobs, and many would like to go to college. Most have supportive families. 50. Once transferred to the Public Day School, students remain in there for years. 51. The dropout rate at the Public Day School is 41.1%, compared with the 6.5% overall dropout rate for SPS. 52. Because SPS tells parents that the only viable educational setting for their child is the Public Day School, parents are left with little choice but to acquiesce to that placement. 53. SPS often tells parents that their children need this segregated setting or their children will fail educationally. SPS tells parents this even though children regularly drop out of the Public Day School because of its inferior education, punitive climate, and the high risk of arrest in the Public Day School.
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54. Defendants fail to provide Public Day School students and their parents any meaningful alternative to the Public Day School.
55. The Public Day School is inferior to and separate from SPS’s neighborhood schools. Placement in the Public Day School needlessly segregates children from their peers without a disability.
56. The Public Day School operates as little more than a “warehouse” for children with a mental health disability. The Public Day School does not provide the same opportunities to learn that are provided to students without a disability. Academic instruction is “dumbed down” and secondary to behavioral control based on the unwarranted assumption that children in the Public Day School are incapable of achieving academically at the same level as their peers without a disability.
57. Children in the Public Day School have virtually no opportunity to engage in extracurricular activities. Students are denied access to nearly all extracurricular activities available in the neighborhood schools, including afterschool sports and clubs and activities devoted to art, drama, poetry, student government, and various cultures. They cannot play interscholastic sports against other schools within SPS or inter-district sports against teams from other school districts. They do not have the opportunity to participate in SPS sponsored college, military, and job informational and recruitment activities available to students in the neighborhood schools.
58. School-based behavior services are largely unavailable to children in the Public Day School, which does not use effective and professionally accepted practices for managing and improving the behavior of children with a mental health disability. Instead, the Public Day
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School uses methods that interfere with their education and the ability to learn, and tend to exacerbate their mental health symptoms.
59. Lacking adequate training and support, Public Day School staff often resort to harsh and counterproductive responses to students’ behavior, including dangerous physical restraints (that risk serious injury or death), unnecessary forced isolation (sometimes for multiple days), and inappropriate arrests and suspensions for minor offenses. The suspensions include formal out-of-school suspensions, in-school suspensions, and “informal suspensions” (e.g., where the Public Day School staff call parents and tell them to remove their child from school for the remainder of the day).
60. The Public Day School also relies heavily on the police for routine disciplinary matters. The City has arranged with the Springfield Police Department for armed and uniformed police officers, known as the “Quebec Unit” to be on the Public Day School campuses. Neither SPS nor the Police Department has adequately trained these officers to work effectively with students with a mental health disability.
61. The police regularly arrest youth for infractions of school rules that elsewhere would be handled through school disciplinary procedures.
62. In addition, Public Day School staff regularly use the police to impose severe discipline, such as physical restraints or placement in isolation rooms, for minor discipline issues such as not following directions or disrupting class.
C. Plaintiff S.S. 63. S.S., who has experienced traumas in his life, is diagnosed with depression and attention deficit and hyperactivity disorder, among other conditions. S.S. has a disability within
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the meaning of the ADA. His mental health condition substantially limits one or more major life activities, including developing and maintaining relationships.
64. S.S. is a talented artist who especially likes drawing and theater. S.S. is well organized and has a strong work ethic and keen sense of humor. He enjoys spending time with his family and likes to help his mother with chores around the house and caring for his younger siblings. He enjoys baking cakes, and going to parks, museums, amusement parks, and shopping.
65. S.S. willingly and actively participates in treatment for his mental health disability. He takes prescribed psychiatric medication and regularly participates in outpatient mental health therapy. However, as a result of his mental health disability, S.S. sometimes in school talks out of turn, gets out of his seat, uses inappropriate language, or leaves class. On rare occasions, he has fought with other students, mostly in response to being hit and/or bullied by other students. On occasion, S.S. has responded physically to school staff when they tried to physically restrain him.
66. SPS transferred S.S. to the Public Day School approximately five years ago, when he was in the fourth grade. In the fall, S.S. will be a ninth grader.
67. S.S. and his mother want S.S. to be educated in a neighborhood school, which is the most integrated setting appropriate to his needs. Defendants have not offered S.S. any meaningful alternative to enrollment in the Public Days School.
68. S.S. would like to play interscholastic sports, especially basketball, but such activities are not offered in the Public Day School.
69. S.S. could be educated in a neighborhood school if SPS were to reasonably modify its programs and services and provide S.S. with school-based behavior services.
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70. At the Public Day School, S.S. has been subjected to dangerous physical restraints, inappropriate forced isolation, and arrests and suspensions for minor offenses such as swearing, talking out of turn, and getting out of his seat. Staff at the Public Day School have enlisted police officers to help them physically restrain S.S. and to isolate him in a padded basement room, which, on at least one occasion, lasted for several days.
71. The Public Day School has not been effective in improving S.S.’s behavior in school. To the contrary, it has eroded his self-esteem and exacerbated his mental health symptoms.
72. SPS has a High School Choice program, which allows students to choose their high school through a balloting process. Each high school has its own character and a unique focus, such as vocational education or science and technology.
73. Although S.S. wants to participate in the balloting process to choose his high school, as a student in the Public Day School, he is barred from doing so.
74. By not educating S.S. in a neighborhood school, and relegating him to the inferior Public Day School, Defendants have denied S.S. equal educational opportunity and the opportunity to be educated in the most integrated setting in violation of the ADA.
D. The Plaintiff Class 75. S.S. is not alone in his experiences in the Public Day School. It is a situation endured by hundreds of similar children who also have a mental health disability. The Plaintiff class of children who are placed in or will be placed in the Public Day School suffer the same injuries and require the same relief as Plaintiff S.S. 76. Defendants are denying not only Plaintiff S.S. but also the Plaintiff class equal educational opportunity and the opportunity to be educated in SPS’s neighborhood schools.
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77. Without school-based behavior services, Plaintiff S.S. and the Plaintiff class will

not have the same opportunity as their peers without a disability to learn and graduate, or to be

educated in SPS’s neighborhood schools. However, Defendants have failed to reasonably

modify SPS’s programs and services to provide S.S. and the Plaintiff class with school-based

behavior services.

78. Through the acts and omissions described above, Defendants are:

i.

Denying S.S. and the Plaintiff class the opportunity to participate in and

benefit from educational services that are equal to those afforded other

students;

ii.

Denying S.S. and the Plaintiff class educational services that are as

effective in affording equal opportunity to obtain the same result, gain the

same benefit, or reach the same level of achievement as that provided

other students;

iii.

Denying S.S. and the Plaintiff class the opportunity to receive educational

programs and services in the most integrated setting appropriate to their

needs;

iv.

Failing to reasonably modify SPS’s programs and services as needed to

avoid discrimination against S.S. and the Plaintiff class; and

v.

Utilizing methods of administration that have the effect of defeating or

substantially impairing the accomplishment of the objectives of

Defendants’ educational programs with respect to S.S. and the Plaintiff

class.

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COUNT I VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT
79. Plaintiffs re-allege the allegations in all preceding paragraphs as though fully set forth herein.
80. Plaintiff S.S. and the members of the Plaintiff class, who include PPAL constituents, are individuals with a disability within the meaning of the ADA. Their mental health condition substantially limits one or more major life activities, including developing and maintaining relationships.
81. As school-age children, they are qualified to participate in Defendants’ educational programs and services. 42 U.S.C. § 12131(2).
82. Defendants the City of Springfield and SPS are public entities within the meaning of the ADA and Defendants Sarno and Warwick are officials responsible for running these public entities and supervising their operations. 42 U.S.C. § 12131(1).
83. Through the acts and omissions described above, Defendants are violating Title II of the ADA by:
a. Denying S.S. and the Plaintiff class an opportunity to participate in and benefit from educational services that is equal to that afforded other students;
b. Denying S.S. and the Plaintiff class educational services that are as effective in affording equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as that provided other students;
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c. Denying S.S. and the Plaintiff class the opportunity to receive educational programs and services in the most integrated setting appropriate to their needs;
d. Failing to reasonably modify SPS’s programs and services as needed to avoid discrimination against S.S. and the Plaintiff class; and
e. Utilizing methods of administration that have the effect of defeating or substantially impairing the accomplishment of the objectives of Defendants’ educational programs with respect to S.S. and the Plaintiff class.
84. Granting relief to Plaintiffs would not fundamentally alter Defendants’ programs, services, and activities.
85. The acts and omissions of Defendants have caused and will continue to cause S.S. and the Plaintiff class, who include PPAL constituents, to suffer irreparable harm, and they have no adequate remedy at law.
RELIEF REQUESTED WHEREFORE, Plaintiffs pray that the Court grant the following relief: A. Order that Plaintiff S.S. may maintain this action as a class action pursuant to
Rule 23(b)(2) of the Federal Rules of Civil Procedure. B. Order and declare that Defendants are violating the rights of S.S. and other
similarly situated children under Title II of the ADA, 42 U.S.C. § 12101, et seq., and its implementing regulations. C. Preliminarily and permanently enjoin Defendants, their successors in office, agents, employees and assigns, and all persons acting in concert with them to provide Plaintiff S.S. and the Plaintiff class with the school-based behavior services they need to enjoy equal educational opportunity and receive educational programs and services in the most integrated setting, as required by Title II of the ADA
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D. Award Plaintiffs’ attorneys’ fees and costs as appropriate and permitted by law, including pursuant to 42 U.S.C. § 12205.
E. Any other relief as this Court finds just and proper.

Dated: June 27, 2014
Of Counsel*:
Deborah A. Dorfman, BBO # 625003 Samuel Miller, BBO # 624969 CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 (413) 586-6024 ddorfman@cpr-ma.org smiller@cpr-ma.org
Ira Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, N.W., Suite 1212 Washington, D.C. 20005 (202) 467-5730 jenniferm@bazelon.org irab@bazelon.org
*pro hac vice applications forthcoming

Respectfully submitted,
S.S., a minor, by his mother, S.Y., on behalf of himself and other similarly situated students, and the Parent/Professional Advocacy League,
By their Attorneys,
/s/ Carol E. Head Robert E. McDonnell, BBO # 331470 Carol E. Head, BBO # 652170 Elizabeth M. Sartori, BBO # 672577 Jacqueline S. Delbasty, BBO # 676284 BINGHAM McCUTCHEN LLP 1 Federal Street Boston, MA 02110 (617) 951-8000 robert.mcdonnell@bingham.com carol.head@bingham.com elizabeth.sartori@bingham.com jacqueline.delbasty@bingham.com
Robert Fleischner, BBO # 171320 CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 (413) 586-6024 rfleischner@cpr-ma.org

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 Case 3:14-cv-30116-MGM Document 157 Filed 07/15/16 Page 1 of 33

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

)

S.S., a minor, by his mother, S.Y., on behalf of himself )

and other similarly situated students, the

)

PARENT/PROFESSIONAL ADVOCACY LEAGUE, )

and the DISABILITY LAW CENTER

)

)

Plaintiffs,

)

v.

)

CITY OF SPRINGFIELD, MASSACHUSETTS;

)

SPRINGFIELD PUBLIC SCHOOLS,

)

Defendants.

)

)

)

)

NO. 3:14-cv-30116

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

“[The Public Day School] is really sub par and I just feel like the expectations for [children there] are much lower . . .. [We should] just shut [the Public Day School] down . . .. The counselor is totally unwilling to make an individualized sheet or to use a visual schedule. Nothing is individualized. So frustrating. How can we actually defend this place? Really.”
- September 2015 Email from a Springfield behavior specialist to Springfield’s Supervisor of Clinical and Behavioral Services
“In my experience as a professional educator, I have never heard such consistently and vividly negative characterizations by parents of their children’s school.”
- Education expert Dr. Peter Leone

Case 3:14-cv-30116-MGM Document 157 Filed 07/15/16 Page 2 of 33
TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................. 1 II. FACTS ............................................................................................................................... 3
A. An Expert Review Finds Springfield Is Systematically Failing Children With Mental Health Disabilities ............................................................................ 3
B. Springfield Systemically Fails to Provide SBBS to Class Members..................... 4 1. Springfield Fails To Provide Meaningful Assessments............................. 5 2. Springfield’s Intervention Plans are Inadequate ........................................ 8 3. Springfield Fails To Provide Adequate Training....................................... 9 4. Springfield Does Not Coordinate Care .................................................... 10
C. SBBS Would Allow The Class To Succeed In Neighborhood Schools .............. 11 D. Springfield Mandates Transfer to the Public Day School ................................... 11 E. The Public Day School Provides An Inferior Education ..................................... 12
1. Families Recognize The Public Day School As Inferior ......................... 12 2. The Public Day School Offers Inferior Academics ................................. 13 3. The Public Day School Has Inferior Extracurricular Activities .............. 13 4. The Public Day School Has Inferior Facilities ........................................ 14 5. The Public Day School is Not Therapeutic.............................................. 14 6. The Needless Segregation of Class Members Results in an
Inherently Inferior Education................................................................... 16 F. S.S. is Typical of the Proposed Class .................................................................. 17 III. LEGAL ARGUMENT..................................................................................................... 18 A. The Record Is Sufficient For Class Certification................................................. 19 B. The Claims Satisfy Rule 23(a)............................................................................. 20
1. The Class Is So Numerous That Joinder Is Impractical........................... 20 2. The Claims Share Common Questions of Law and Fact ......................... 21 3. S.S.’s Claims Are Typical of the Class.................................................... 23 4. S.S. Will Fairly And Adequately Represent The Class’s Interests.......... 24 C. Class Resolution is Appropriate Under Rule 23(b)(2)......................................... 25 D. Class Counsel Should Be Appointed Pursuant to Rule 23(g).............................. 26 IV. CONCLUSION................................................................................................................ 27
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TABLE OF AUTHORITIES
Page(s)
CASES
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)...........................................................................................................19, 25
Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184 (2013).............................................................................................................20
Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985)....................................................................................................24
Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994)...................................................................................................24, 25
Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426 (7th Cir. 2015) .............................................................................................25, 26
Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288 (D. Mass. 2011)........................................................................................18, 24
Dunakin v. Quigley, 99 F. Supp. 3d 1297 (W.D. Wash. 2015).................................................................................18
Garcia-Rubiera v. Calderon, 570 F.3d 443 (1st Cir. 2009)....................................................................................................24
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982).................................................................................................................23
Gray v. Golden Gate Nat’l Recreational Area, 866 F. Supp. 2d 1129 (N.D. Cal. 2011) ...................................................................................19
Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978)..................................................................................................19
Guckenberger v. Boston Univ., 957 F. Supp. 306 (D. Mass. 1997) ...........................................................................................24
Hawkins ex rel v. Comm’r of the New Hampshire Dept. of Health and Human Servs., No. Civ. 99-143-JD, 2004 WL 166722 (D.N.H., Jan 23, 2004) ..................................25

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TABLE OF AUTHORITIES
Page(s)
In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015) ...................................................................................................25
Kenneth R. ex rel. Tri-Cty. CAP, Inc./GS v. Hassan, 293 F.R.D. 254 (D.N.H. 2013) ....................................................................................18, 22, 23
Lane v. Kitzhaber, 283 F.R.D. 587 (D. Or. 2012) ..................................................................................................19
Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) ..........................................................................................24
Matamoros v. Starbucks Corp., 699 F.3d 129 (1st Cir. 2012)....................................................................................................24
N.B. v. Hamos, 26 F. Supp. 3d 756 (N.D. Ill. 2014) .........................................................................................19
O.B. v. Norwood, No. 15 C 10463, 2016 WL 2866132 (N.D. Ill. May 17, 2016) ...............................................18
O’Toole v. Cuomo, Order 13-cv-04166-NGG-MDG ..............................................................................................18
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), 28 C. ........................................................................................................1
Reid v. Donelan, 297 F.R.D. 185 (D. Mass. 2014) (Ponsor, J.) ..........................................................................26
Rolland v. Cellucci, No. CIV A 98-30208-KPN, 1999 WL 34815562 (D. Mass. Feb. 2, 1999) .............................24
Serventi v. Bucks Technical High Sch., 225 F.R.D. 159 (E.D. Pa. 2004)...............................................................................................24
Steward v. Janek, No. 5:10-CV-1025-OLG (W.D. Tex. May 20, 2016),.................................................18, 22, 23
Stirman v. Exxon Corp., 280 F.3d 554 (5th Cir. 2002) ...................................................................................................23

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TABLE OF AUTHORITIES
Page(s)
Thorpe v District of Columbia, 303 F.R.D. 120 (D.D.C. 2014).................................................................................................18
Tyrell v. Toumpas, No. 09-cv-243-JD, 2010 WL 174287 (D.N.H. Jan. 14, 2010).................................................23
Van Meter v. Harvey, 272 F.R.D. 274 (D. Me. 2011).................................................................................................18
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)......................................................................................................... passim
Williams v. Conway, 312 F.R.D. 248 (N.D.N.Y. 2015) ............................................................................................18
STATUTES
Title II of the Americans with Disabilities Act, 42 U.S.C §§ 12131-65 ..................................................................................................... passim
OTHER AUTHORITIES
28 C.F.R. §§ 35.001 et seq.....................................................................................................1, 2, 21
7A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1763 (2016)...........................................................................................................................22
7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1776 (3d ed. 2005) ........................................................................................25
Fed. R. Civ. P. 23................................................................................................................... passim

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I. INTRODUCTION In Springfield’s public schools, children with mental health disabilities do not receive the
same educational opportunities offered to children without disabilities. They are needlessly segregated, against their families’ wishes, in a separate school. This separate school—called the Public Day School—provides an education that Springfield’s own education professionals call “sub-par” compared to Springfield’s regular, “neighborhood” public schools.
Springfield’s treatment of children with mental health disabilities is illegal. Under Title II of the Americans with Disabilities Act, 42 U.S.C §§ 12131-65, and its implementing regulations, 28 C.F.R. §§ 35.001-.999 (collectively the “ADA”), Defendants City of Springfield and its Public Schools (collectively “Springfield”) are required to provide children with disabilities educational opportunities equal to those provided to their peers without disabilities. See 28 C.F.R. § 35.130(b)(1)(ii). The ADA also prohibits Springfield from unnecessarily segregating students because of their disabilities. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 599, 607 (1999), 28 C.F.R. § 35.130(d). Further, the ADA mandates that Springfield make the reasonable modifications necessary to provide an equal education for children with mental health disabilities, in integrated settings. See 28 C.F.R. § 35.130(b)(1)(iii).
In violation of the ADA, Springfield: 1. “Afford[s] [the student class] an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others,” 28 C.F.R. § 35.130(b)(1)(ii); 2. “Provide[s] [the student class] an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others,” 28 C.F.R. § 35.130(b)(1)(iii); 3. Fails to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” 28 C.F.R. § 35.130(d), which the Attorney General has defined as “a setting that
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enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible,” 28 C.F.R. pt. 35, App. B, p. 674; 4. Fails to “make reasonable modifications . . . necessary to avoid discrimination,” 28 C.F.R.§ 5.130(b)(7); and 5. “[U]tilize[s] criteria or methods of administration … [t]hat have the . . . effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities,” 28 C.F.R. § 35.130(b)(3)(ii). Plaintiffs do not seek monetary damages. They are not demanding, in this proceeding,
that the Court create individualized education programs for class members. Rather, Plaintiffs
seek, on behalf of affected children, a declaration and an injunction requiring Springfield to
comply with the ADA by providing the school-based behavior services (“SBBS”) required to eliminate these ADA violations. To that end, Plaintiffs have asked1 the Court to certify a class of all students with a mental health disability2 who are or who have been enrolled in the Public Day School, and who are not being educated in a neighborhood school.3 Plaintiffs’ First Amended
Complaint, ECF no. 55 (“FAC”) ¶ 39.
Courts have certified classes in virtually every ADA cases like this one. And for good
reason. While no two children in the class are identical, each class member has a disability and
has suffered the same injuries as a result of the same Springfield policies and practices. S.S.’s
1 Plaintiffs filed a motion for class certification on October 16, 2015. ECF no. 96. Preliminary briefing was filed in October and November 2015. ECF nos. 97, 101. This supplemental briefing, which follows initial discovery, has been contemplated throughout the case. See Scheduling Orders, ECF nos. 137, 150.
2 A “mental health disability” is a mental or emotional impairment that substantially [?? ask Kathy] limits one or more major life activities, including developing and maintaining relationships. See FAC ¶ 90.
3 We use “neighborhood school” as shorthand for the schools in which Springfield educates children without a mental health disability. See FAC ¶¶ 1, 2.
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claims, in these core ways, are typical of those of the class. There is no conflict preventing him
from pursuing relief on the class’s behalf. Further, a class action and injunction are the most
efficient and equitable way to remedy the class’s injuries. The Court should, accordingly, certify
the proposed class.
II. FACTS While only limited discovery has occurred, the record4 demonstrates why class
certification is warranted.
A. An Expert Review Finds Springfield Is Systematically Failing Children With Mental Health Disabilities.
From January through May of 2016, Peter Leone, a Professor at the University of
Maryland and nationally recognized authority in the education of children with mental health
disabilities,5 conducted a review of Springfield’s treatment of the student class. See Leone Rpt.
4 The record includes a statement from Plaintiffs’ Expert, Peter E. Leone, Ph.D. (“Leone Rpt.”), attached as Exhibit A to the Declaration of Peter E. Leone, Ph.D.; other declarations including those of parents of students and a student in the proposed class; of Christine Griffin, Executive Director of Plaintiff Disability Law Center (“DLC”); of Lisa Lambert, Executive Director of Plaintiff Parent Professional Advocacy League (“PPAL”); and of Patrick Sparks, Attorney-in-Charge, Committee for Public Counsel Services Youth Advocacy Division; data and documents produced by Defendants; publically available data and documents; and the FAC.
5 Dr. Leone is an expert in special education and in providing educational programs and services for children and adolescents with mental health disabilities. Leone Rpt. ¶¶ 2-7, and Ex. 1, attached to Leone Rpt. In conducting his review, Dr. Leone reviewed the records for a statistically valid, randomly selected sample of 24 class members and interviewed 12 of these students and/or their families. Leone Rpt. ¶¶ 8-9, 12. In addition, Dr. Leone reviewed the Springfield school records of an additional 16 students who were not randomly selected but who had consented to participate in Dr. Leone’s review, including Plaintiff, S.S. and N.D., a constituent of PPAL and DLC whose experiences are described in the FAC. See Leone Rpt. ¶ 18; FAC ¶¶ 74-83, 86. Dr. Leone interviewed the families of 7 of the 16 students, including S.S.’s parents. Leone Rpt. ¶ 18. Dr. Leone also reviewed Springfield’s policies and procedures, other documents and data and 130 redacted Individualized Education Programs (“IEPs”). Leone Rpt. ¶¶ 22-28.
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Dr. Leone’s findings include:
 “[C]hildren [in the student class] need a common set of services . . . ‘SBBS’.” Leone Rpt. ¶ 30.
 “[T]he class could successfully be educated in an integrated setting in their neighborhood schools if afforded appropriate SBBS.” Leone Rpt. ¶ 32.
 “For every student who was placed in the Public Day School from the neighborhood schools [whose records I reviewed], the records show that [Springfield] failed to provide appropriate SBBS in the neighborhood schools prior to the student’s transfer to the Public Day School.” Leone Rpt. ¶ 38.
 “[T]he children placed in the [Springfield] Public Day School receive an inferior education and are denied services, activities, and supports that [Springfield] students who are educated in their neighborhood . . . schools routinely receive.” Leone Rpt. ¶ 33.
 “[P]lacing children in the Springfield Public Day School contributes to the poor academic and social outcomes experienced by the class.” Leone Rpt. ¶ 94.
 “The evidence I reviewed . . . supports the conclusion that placement of children in the [Springfield] Public Day School makes their mental health disabilities worse.” Leone Rpt. ¶ 98.
Moreover, Dr. Leone contends that, even if SBBS were provided, sending the student
class to the Public Day School would still be inappropriate and unequal, because:
 “Segregated education is inherently unequal.” Leone Rpt. ¶99.
 Segregation in the Public Day School “deprives [the student class] of . . . the normalizing experiences of childhood.” Leone Rpt. ¶ 98.
 Segregation in the Public Day School “contributes to children’s feelings of inadequacy and inferiority.” Leone Rpt. ¶ 97.
 Segregation in the Public Day School “increases the likelihood that these children will . . . experience stigma and isolation as they age.” Leone Rpt. ¶ 97.
B. Springfield Systemically Fails to Provide SBBS to Class Members
Dr. Leone explains that there is a professional consensus that students like those in the
student class require SBBS to be successfully educated in neighborhood schools, and to have the
same opportunity to learn, advance from grade to grade, and graduate as students without -4-
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disabilities. Leone Rpt. ¶ 41. Dr. Leone also attests that SBBS are essential to affording equal educational opportunity to students such as those in the class and to enabling them to be educated in neighborhood schools. Leone Rpt. ¶¶ 41-42, 68-69.
SBBS are provided routinely by school systems. See Leone Rpt. ¶ 41. The essential components of SBBS include: (a) a comprehensive assessment, including determination of the purpose and triggers for the child’s behavior; (b) a school-based intervention plan that relies on positive support, social skills building, a care coordinator, and adjustments as needed to the curriculum or schedule; (c) training for school staff and parents in implementing the plan; and (d) coordination with non-school providers involved with the child. FAC ¶ 60; Leone Rpt. ¶ 30.
Dr. Leone found that Springfield failed to provide SBBS in the neighborhood schools to every student whose records he reviewed. Leone Rpt. ¶¶ 38, 50-52. Dr. Leone also found that Springfield “systematically denies students in the class the SBBS they need to enjoy equal educational opportunity and to be educated in neighborhood schools.” Leone Rpt. ¶ 42; see also ¶ 71 (Class members’ behavioral problems “went unaddressed or were ineffectively addressed in neighborhood schools”). The result is that children, whose mental health disabilities are treatable, are allowed to suffer and decline. See Leone Rpt. ¶ ¶ 59, 65, 68-69. Eventually, many of these children are transferred to the Public Day School, where their mistreatment continues. See Leone Rpt. ¶¶ 77, 83-84. According to Dr. Leone, Springfield’s “response to students’ mental health needs suggests that one size fits all” and Springfield’s practices “harm[] all students in the class.” Leone Rpt. ¶ 54.
1. Springfield Fails To Provide Meaningful Assessments. A comprehensive assessment is an essential part of SBBS. Without such assessments, Springfield is unable to provide SBBS, with the result that students are removed from
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neighborhood schools and placed in the Public Day School. Leone Rpt. ¶¶ 30, 31, 43.
Dr. Leone found that Springfield does not provide the student class with comprehensive
assessments to determine, among other things, the purposes of and antecedents to their
behaviors. Leone Rpt. ¶ 43. Springfield’s assessments of children with mental health
disabilities, when they are completed, are cursory and filled with boilerplate language. See
Leone Rpt. ¶¶ 47-49. Indeed, Springfield maintains a list of stock phrases in both English and
Spanish for use in student’s Individualized Education Programs (“IEPs”). See Declaration of
Matthew Bohenek (“Bohenek Decl.”) Ex. 1 at SPS-Adm-041866, and its overburdened
professionals are asked to “copy/paste.” Bohenek Decl. Ex. 2 at SPS-Adm-042162.
That is not the same as providing SBBS, and professionals in Springfield schools have
recognized as much. For example:
 Springfield’s former Chief of Pupil Services described the staff in one neighborhood school as having “[n]o understanding of special education or behavioral assessments. No understanding of problem solving.” Bohenek Decl. Ex. 3 at SPS-Adm-0930050.
 Springfield’s Elementary Behavior Specialist and a Public Day Elementary School Counselor express concern that a particular child has not been in a neighborhood school “long enough to determine appropriate placement” but that the school is “anxious to unload” the child to the Public Day School anyway. Bohenek Decl. Ex. 4 at SPS-Adm042443.
 One of Springfield’s Special Education Supervisors complains that the principal of a neighborhood elementary school had attempted to place a child in a segregated setting “when she never even referred [the student] for an evaluation.” Bohenek Decl. Ex. 5 at SPS-Adm-014076. The same supervisor remarked that it was “unbelievable” that the principal of an elementary school could be so deficient in following accepted practices. Id.
 Springfield’s Supervisor of Clinical and Behavioral Services criticizes the neighborhood school staff for repeatedly requesting transfers of students with mental health disabilities to the Public Day School without first attempting to provide them with SBBS, stating that “I feel like these requests come at us all the time!” Bohenek Decl. Ex. 6 at SPSAdm-082737.
 A Springfield special education team leader expressed her dismay that the counselor for -6-
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a student with a mental health disability at a neighborhood school told the student’s parent that the student “did not require an IEP, nor a 504 [plan], she willfully and intentionally misbehaves, doesn’t appear depressed or demonstrates any signs of PTSD or emotional impairments,” but nonetheless seeks to transfer the child to the Public Day School, which is specifically for children with disabilities. “YIKES . . . YIKES . . . YIKES . . .,” she concluded. Bohenek Decl. Ex. 7 at SPS-Adm-082754-082761 (capitalization in original). Similarly, students and parents complain that, instead of identifying and effectively addressing the needs of the student class, the neighborhood schools simply give up on them and shuttle them off to the Public Day School. Bohenek Decl. Ex. 8, Declaration of D.S. (“D.S. Decl.”) ¶¶ 5, 6 (Springfield did not try to determine if child’s behavioral problems were due to child’s disability, and did not assess child’s needs or reach out to child’s mental health providers in the community); Bohenek Decl. Ex. 9, Declaration of P.R. (“P.R. Decl.”) ¶7 (neighborhood school did not have the staff to meet child’s mental health needs and instead simply transferred him to Public Day School); Bohenek Decl. Ex. 10, Declaration of A.P. (“A.P. Decl.”) ¶ 5 (Springfield would not let child stay in the neighborhood school and told child’s mother that it did not have the types of services the child needed); and Bohenek Decl. Ex. 11, Declaration of J.C. (“J.C. Decl”) ¶ 5 (neighborhood school did not have the types of services that child needed); see also Bohenek Decl. Ex. 12, Declaration of Christine Griffin, Executive Director of the Disability Law Center, the protection and advocacy system for Massachusetts (“Griffin Decl.”) ¶ 16 (Springfield “school staff often push students to segregated schools rather than work with families and children to help the students stay in integrated neighborhood school settings.”); Bohenek Decl. Ex. 13, Declaration of Lisa Lambert, Executive Director of the Parent/Professional Advocacy League (“Lambert Decl.”) ¶ 13 (Springfield “does not provide students with supports and services that’s would help them be successful and to make progress in the most integrated setting.”).
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2. Springfield’s Intervention Plans are Inadequate. The second component of SBBS is an individualized plan that relies on positive support,
social skills building, a care coordinator, and adjustments as needed to the curriculum or
schedule. Leone Rpt. ¶ 30; FAC ¶ 60. Dr. Leone found this lacking as well. As he wrote,
“Springfield does not provide effective intervention plans that rely on positive support, social
skills training, a care coordinator, and necessary curriculum or schedule adjustments.” Leone
Rpt. ¶ 43; see also Lambert Decl. ¶13; Griffin Decl. ¶15.
While Springfield uses behavioral intervention plans (“BIPs”), Dr. Leone found “a
uniform failure by [Springfield] to . . . develop[] and implement[] effective [BIPs].” Leone Rpt.
¶ 50. The service plans for class members “often repeat the same boilerplate language in one
plan after another. Some files include documents with an incorrect name of the child and
references in the plans that appear to have been developed for another child.” Leone Rpt. ¶ 54.
Again, the initial record bolsters Dr. Leone’s conclusions:
 After reviewing the BIP of a student with a mental health disability at a neighborhood middle school, a Springfield special education team leader remarks “I saw a copy of the BIP this morning, and boy oh boy . . . it is not comprehensive…”). Bohenek Decl. Ex. 7 at SPS-Adm-082754-082761.
 Springfield’s Supervisor of Clinical and Behavior Services expresses concern about a BIP, describing it as “a crazy lame BIP w [sic] no documented interventions for a kid this intense.” Bohenek Decl. Ex. 14 at SPS-Adm-083709.
 Springfield describes the Public Day School as a last resort, to be employed when other efforts have failed. But Springfield’s former Director of Pupil Services complains to the Superintendent that staff are attempting to place two children at the Public Day School even though there was “no BIP, nothing in the way of intervention…” at the neighborhood school. Bohenek Decl. Ex. 15 at SPS-Adm-057195.
 Springfield’s administrators find employees “just [] cutting and pasting” from a template BIP. Bohenek Decl. Ex. 16 at SPS-Adm-093101.
 An employee remarks about a child that “[t]here is a BIP but his incentive plan is the same one that the entire class is on and is not specifically tailored to his needs.” -8-
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Bohenek Decl. Ex. 17 at SPS-Adm-042398.
 Springfield asks personnel to write behavioral plans for children whom they have never met. When a counselor objects that “I have never met the student or had the opportunity to observe him, so [creating a BIP] would be rather difficult,” supervisors suggest workarounds—but not that the counselor actually meet with the student. See Bohenek Decl. Ex. 18 at SPS-Adm-042258; Ex. 19 at SPS-Adm-042335 to 37.
 When an administrator at one of the neighborhood schools attempts to refer children with mental health disabilities to the Public Day School, a principal observes that the neighborhood school had “NO evidence that the Interventions and strategies noted to reinforce replacement behaviors in the Behavioral Intervention Plan (BIP) were implemented or monitored.” Bohenek Decl. Ex. 20 at SPS-Adm-012390 (capitalization in original); see also Ex. 21 at SPS-Adm-044370 (A school adjustment counselor writes in November, “[Student] has a BIP from last Spring, which I have been told was never implemented.”).
 After reviewing a report critical of Springfield’s practices, one behavior specialist remarks that she “[r]eally can’t argue with any of this. . . . The only problem now is how to get staff to do this as there are not enough behavioral specialists in the district.” Bohenek Decl. Ex. 22 at SPS-Adm-039050; see also Bohenek Decl. Ex. 23 at SPS-Adm039040 (According to Springfield’s intervention and supports coordinator, developing adequate plans might overwhelm staff: “behavior specialists might get an influx of behavior observations and would have to provide more support to the schools.”).6
3. Springfield Fails To Provide Adequate Training.
The third component of SBBS is training for school staff and parents in implementing the
intervention plan. Leone Rpt. ¶ 30. Dr. Leone found that Springfield fails to train parents and
staff to provide consistent interventions for the students in support of the school’s intervention
plan. See Leone Rpt. ¶ 43. Springfield’s internal emails refer to training as “an area which is
currently a weakness.” Bohenek Decl. Ex. 25 at SPS-Adm-025238. An administrator notes that
6 In some instances, the limited supports available at the neighborhood school are improperly used as punishment. Bohenek Decl. Ex. 24 at SPS-Adm-042746 (“This has been an on-going concern at Commerce [High School]. SEBS needs to be utilized proactively, not as punishment. This has not always been the case and leads to a lot of frustration with SEBS staff . . . .The SEBS teachers tell me that administration calls them to come to get students who are in violation of the Code of Conduct.”). “SEBS” is an acronym for Social Emotional Behavior Support Program offered at some neighborhood schools.
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staff needs “[m]ore hands on and functional training” concerning BIPs. Id.; see also Bohenek Decl. Ex. 26 at SPS-Adm-044197 (Springfield’s Elementary Behavior Specialist states, “She is not the only new [School Adjustment Counselor] that has gotten 0 training about procedures in the district. We will just fill in gaps when they become evident.”).7
4. Springfield Does Not Coordinate Care. The fourth component of SBBS is coordination with non-school providers who are involved with the child. Leone Rpt. ¶ 30; FAC 60. Dr. Leone found that Springfield “engaged in little to no coordination with outside providers.” Leone Rpt. ¶ 43. Indeed, when Springfield’s own mental health professionals have sought to coordinate mental healthcare for students, administrators have often rebuffed that effort, claiming that the burden of coordination rests on parents. In one telling example involving a child from the sample group, a Springfield behavior specialist asks a colleague to invite the child’s “team,” including his Department of Children and Families (DCF) caseworker, to a behavioral assessment meeting. The colleague refuses, averring “[i]t is the parent’s responsibility to invite any outside agencies.” Bohenek Decl. Ex. 32 at SPS-Adm-010681. In subsequent correspondence, a supervisor agrees with the behavior

7 Springfield school staff also lack training in punitive approaches to behavior, such as restraints, that staff turns to instead of SBBS. See Bohenek Decl. Ex. 27 at SPS-Adm-041721 (email from the Public Day High School Assistant Principal identifying three teachers who “still need Initial [restraint] training”); Ex. 28 at SPS-Adm-092884 (discussing teacher discipline of a teacher who is “not [] trained” in restraint techniques). Emails suggest that none of the staff at one middle school may be trained on restraint methods despite concerns about a student who “has the potential to lose it” and instructions to restrain the student as needed. Bohenek Decl. Ex. 29 at SPS-Adm-092557 to 59 (lack of policy and training discussed in response to concern raised by reading coach that she is “[n]ot sure if the staff here is trained for this type of situation. . . what if she had to be restrained in the classroom”). The result of this inadequate training is that students are injured. Bohenek Decl. Ex. 30 at SPS-Admin-092367 (“her son was restrained in school, had bruises around his neck and face and a burn abrasion behind his ear”); Ex. 31 at SPS-Adm-043404 (grandmother raised concerns about bruise on grandchild’s chest following a “full security hold” at the Public Day School’s elementary campus).

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specialist that although it would be a “[b]est practice” for the district to coordinate care,

“technically we’re not obligated.” Bohenek Decl. Ex. 33 at SPS-Adm-010718. On another

occasion, in response to direction not to reach out to parents directly because of a lack of

resources, a coordinator of testing says “[i]t sounds to me like you are saying that this is their

[the parents’] proverbial problem and not ours.” Bohenek Decl. Ex. 34 at SPS-Adm-034696.

C. SBBS Would Allow The Class To Succeed In Neighborhood Schools. Dr. Leone is “confiden[t]” that with SBBS, “the class could successfully be educated in

an integrated setting in their neighborhood schools”—that is, in the schools where their peers and

friends without disabilities are educated. Leone Rpt. ¶ 32, see also ¶¶ 68, 69; see also Griffin

Decl. ¶¶ 12-13; Lambert Decl. ¶¶9, 11. None of the children in Dr. Leone’s review “stood out as

having extraordinary challenges,” and “[a]ll experienced behavioral and academic challenges

similar to those faced by countless other students with whom I have worked and who have been

educated successfully in neighborhood schools.” Leone Rpt. ¶ 70.

D. Springfield Mandates Transfer to the Public Day School. Every child in the class was transferred to the Public Day School. While parents—most

of them without any resources to fight back—acquiesce to their children’s placement in the

Public Day School, they are not given a choice. A.P. Decl. ¶ 6 (“The SPS staff did not give me

any other options so I felt I had no other choice”); J.C. Decl. ¶ 6 (“The SPS staff did not give my

mom and me any other options. SPS did not give me any other choice but to go to [the Public

Day School] even though I did not want to go to school there.”); D.S. Decl. ¶ 8 (“[Springfield]

told me that we did not have a choice and that [my child] had to attend [the Public Day School],

explaining that [my child]’s behavior problems required him to. . . ”); Bohenek Decl. Ex. 35,

Declaration of M.P. (“M.P. Decl.”) ¶10 (“[Springfield] assigned [L.P.] to the [Public Day

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School]. I was not given any other choice . . . ”); P.R. ¶12 (“[Springfield] told me that we did

not have a choice and that J.R. had to attend [the Public Day School]”).

In sum, Springfield “push[es] students to segregated schools rather than work with

families and children to help the students stay in integrated neighborhood school settings.”

Griffin Decl. ¶ 14.

E. The Public Day School Provides An Inferior Education. Dr. Leone found that, on a variety of metrics, the Public Day School is inferior to

Springfield’s neighborhood schools. See Leone Rpt. ¶ 33 (“the children placed in the

[Springfield] Public Day School receive an inferior education”); Leone Rpt. ¶ 80 (“[t]he inferior

education provided in the Public Day School”).

1. Families Recognize The Public Day School As Inferior. With alarming frequency, students and their families describe the Public Day School as a

“jail” or “prison.” Leone Rpt. ¶ 83; see also ¶¶ 76, 77; P.R. Decl. ¶ 13. They describe a

placement in the Public Day School as akin to a finding of “juvenile delinquency.” See e.g., A.P.

Decl. ¶ 6. All commented on the inferior services and/or extracurricular activities at the Public

Day School. See Leone Rpt. ¶ 77; D.S. Decl. ¶17; M.P. Decl. ¶¶ 11-13; P.R. Decl. ¶¶ 16-18;

A.P. Decl. ¶¶ 7-8.; J.C. Decl. ¶¶ 7-10. Dr. Leone reported that “[i]n my experience as a

professional educator, I have never heard such consistently and vividly negative

characterizations by parents of their children’s school.” Leone Rpt. ¶ 83.

Not surprisingly, nearly every family with a child at the Public Day School says that they

would prefer for the child to be educated in a neighborhood school. See Leone Rpt. ¶ 95; see

also A.P. Decl. ¶¶ 11-12; J.C. Decl. ¶ 14; D.S. Decl. ¶¶ 20-21, M.P. Decl ¶¶ 11, 14, 15; P.R.

Decl. ¶¶ 14, 20; Griffin Decl.¶ 14; Lambert Decl. ¶ 12.

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2. The Public Day School Offers Inferior Academics. Academically, students in the Public Day School do not have the same opportunity to

learn and to graduate that is afforded their peers without a disability in Springfield’s

neighborhood schools. See Leone Rpt. ¶¶ 41, 75. Dr. Leone found, “[T]he children placed in the

[Springfield] Public Day School receive an inferior education and are denied services, activities,

and supports that [Springfield] students who are educated in their neighborhood … schools

routinely receive.” Leone Rpt. ¶ 33; see also ¶ 75 (“Class members receive inferior educational

services ….”); ¶ 85 (“S.S.’s academic experience in the Public Day School is typical of the class

members I reviewed and was dramatically below that which would be considered minimally

acceptable by professional standards.”).

Students enrolled in the Public Day School lack access to courses available to students in

Springfield’s neighborhood schools. Leone Rpt. ¶ 34. The Public Day School also requires

fewer credits for graduation, meaning students in the class receive about one semester less of

education than their peers in the neighborhood schools. See Bohenek Decl, Ex. 36; Leone Rpt.

¶ 34.

The inferiority of the education at the Public Day School is reflected in the students’

shockingly low standardized test scores. Leone Rpt. ¶ 80 (citing Massachusetts Department of

Elementary & Secondary Education’s (“DESE”) annual MCAS testing data for the 2014-15

school reporting that MCAS Science and “Tech/Eng” test were rated as 93% failing, 7% in need of improvement, and 0% proficient or advanced as compared to state-wide averages for 8th

graders of 18% failing, 40% in need of improvement, and 42% proficient or advanced).

3. The Public Day School Has Inferior Extracurricular Activities. Public Day School students also lack access to nearly all of the after-school clubs and

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after-school activities available to students at Springfield neighborhood schools, such as art,

poetry, boys and girls club, snowboarding, and cultural groups. Leone Rpt. ¶¶ 81, 86. Unlike

their peers in neighborhood schools, the vast majority of high-school-age Public Day School

students are not able to play intramural or inter-district sports. See Leone Rpt. ¶ 81-82; see also

J.C. Decl. ¶¶ 9-10 (denied opportunity to play baseball at Public Day School); A.P. Decl. ¶ 7

(same); D.S. Decl. ¶ 17; M.P. Decl. ¶ 13.

4. The Public Day School Has Inferior Facilities. Physical facilities at the Public Day School are inferior to neighborhood school buildings.

Leone Rpt. ¶ 78. Springfield itself seems to recognize the inferiority of the Public Day School

facilities: the district budget displays pictures that purport to be of the Public Day School

campuses but are instead pictures of newer, better buildings. Leone Rpt. ¶ 78.

In December, the Principal of the Public Day Schools outlined the following issues with

the Public Day Middle School: “Broken Windows in several classrooms. . . Unregulated

heating throughout the building. (extremely cold on Monday’s. I experienced this myself . . .

and am very concerned for upcoming winter). . . [and] [h]oles in walls in classrooms.” Bohenek

Decl. Ex. 37 at SPS-Adm-056508. A school adjustment counselor at the Public Day School

asked whether she should be concerned about: “The front closet that has the red tiles (which

were previously identified with asbestos) is where staff stores the student’s belongings, such as

coats, phones, etc. The students’ belongings are stored here all day long every day on top of

these asbestos tiles.” Bohenek Decl. Ex. 38 at SPS-Adm-056751.

5. The Public Day School is Not Therapeutic. The Public Day School “makes [students’] mental health disabilities worse.” Leone Rpt.

¶ 98. Contrary to Springfield’s description of it to parents, it is not a therapeutic learning

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environment. FAC ¶ 3. Students are punished for behavior that is symptomatic of their

emotional and behavioral disabilities. Leone Rpt. ¶ 84. And the Public Day School is staffed by

personnel that “doesn’t get it” and “has no business there” according to Springfield’s own

Supervisor of Clinical and Behavioral Services and Behavior Specialist. Bohenek Decl. Ex. 39

at SPS-Adm-045721.

“Parents repeatedly stated that the Public Day School campuses were punitive

environments that exacerbated their children’s mental health problems.” Leone Rpt. ¶ 76; see

also A.P. Decl. ¶9 (her child “was often punished as part of a group punishment for misbehavior

on the part of other students”); J.C. Decl. ¶¶ 11-12 (same); D.S. Decl. ¶¶ 12-14; (“After [my

child] was placed in the [Public Day School], I became concerned with my child’s safety . . . .

[My child’s outside of school] therapist recommended that [Springfield] change my child’s

placement. . . . [It] has been a very chaotic school environment for my child”); P.R. Decl. ¶18

(“[the Public Day School] is not helping J.R. with his behavioral problems.); M.P. Decl. ¶ 11

(“the staff at [the Public Day School] . . . threatened my child with court or probation.”).

Dr. Leone observed that the Public Day School punishes children for behavior resulting

from their disabilities by repeatedly suspending, restraining, or isolating them. Leone Rpt. ¶ 50.

Dr. Leone reported, “These actions by [Springfield] are inappropriate. They constitute . . .

punishment for a disability.” Leone Rpt. ¶ 50. The Public Day School suspends children

disproportionately frequently. Leone Rpt. ¶ 79 (citing the 2014-15 DESE data showing that the

district suspension rate for Springfield was 8.7 % while the suspension rate for students attending

the Public Day School high school campus was 38.6% and for the Public Day School middle

school campus the rate was 36.8%); see also Griffin Decl. ¶17; Lambert Decl. ¶ 14. Students

drop out due to the inferior education and punitive climate of the Public Day School. See also

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J.C. Decl. ¶¶ 11-13; A.P. Decl. ¶¶ 9-10; see also Bohenek Decl. Ex. 40, Declaration of Patrick Sparks ¶ 17 (noting the increased numbers of school based arrests of students in the PDS due to, among other things, decreased educational support).8
6. The Needless Segregation of Class Members Results in an Inherently Inferior Education.
Dr. Leone found that the placement of class members in the segregated Public Day School inherently deprives them of an equal education opportunity. Leone Rpt. ¶¶ 93, 99. Their involuntary segregation at the Public Day School causes the students to be unnecessarily stigmatized and isolated, and contributes to their feelings of inadequacy and inferiority. Leone Rpt. ¶¶ 96, 97. It restricts their exposure to students without disabilities in a normal educational setting, and hence their ability to learn from and to interact with peers without disabilities. Leone Rpt. ¶ 97. It also increases the likelihood that these children will continue to experience stigma and isolation as they age. Leone Rpt. ¶¶ 35, 96, 97. It deprives them of the opportunity to benefit from peer role models and the normalizing experiences of childhood. Leone Rpt. ¶ 98.
Unsurprisingly, class members want to be educated in neighborhood schools, and their families overwhelmingly share that desire. Leone Rpt. ¶ 95, see also D.S. Decl. ¶¶ 20-21 (“I truly hate sending my child to [the Public Day School]. . . . I would very much like for [my child] to attend one of [Springfield’s] neighborhood high schools with services to meet his needs.
8 The overall drop-out rate for the Public Day School is more than five times greater than the Springfield Public Schools District overall. See DESE School Profiles, Springfield Public Day High School 2014-2015 Student Dropout Rate Report, available at http://profiles.doe.mass.edu/dropout/default.aspx?orgcode=02810550&orgtypecode=6&leftNavI d=15627& (last visited July 8, 2016) and Springfield Public Schools 2014-15 Student Dropout Rate Report, available at http://profiles.doe.mass.edu/dropout/default.aspx?orgcode =02810000&orgtypecode=5&leftNavId=15627& (last visited July 8, 2016) (reporting that for the 2014-2015 school year the overall drop-out rate for students at the Public Day School was 27.2 %. compared to a 5.1% overall drop-out rate district-wide).
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. . . ”); A.P. Decl. ¶ 12 (“I would also very much like for J.C. to go back to school at one of

[Springfield’s] neighborhood high schools. I never want him to return to the [Public Day

School].”); J.C. Decl. ¶ 14 (“I would very much like to return to school if I could go to a []

neighborhood high school. I never want to go back to the [Public Day School].”); M.P. Decl.

¶ 15 (“I do not want my child to continue at the [Public Day School].”); P.R. Decl. ¶ 20 (same);

Griffin Decl. ¶ 14 (parents prefer to have their children educated in neighborhood schools with

appropriate services); Lambert Decl. ¶ 12 (same).

F. S.S. is Typical of the Proposed Class. “S.S.’s experience is typical of students in the class.” Leone Rpt. ¶ 55; see also ¶ 37

(“the experience of the named plaintiff, S.S., closely resembles that of the other children in the

class”). Like other members of the class, S.S. is a child with a mental health disability, who was

placed in the Public Day School because Springfield lacks appropriate SBBS. See Leone Rpt.

¶¶ 37, 56-60. Like other members of the class, S.S. could be educated in a neighborhood school

with SBBS. Leone Rpt. ¶¶ 33, 37, 39.

Springfield transferred S.S. to the Public Day School when he was in the fifth grade.

Leone Rpt. ¶ 60. S.S. did not receive SBBS while in Springfield’s schools. Leone Rpt. ¶¶ 37c,

56, 87. Moreover, Springfield “engaged in a pattern of punishing S.S. for behavior that was a

result of his disability.” Leone Rpt. ¶ 87.

S.S. received an inferior education at the Public Day School. Leone Rpt. ¶ 37e (“While

at the Public Day School [S.S.] received unequal and substandard academic opportunities.”). At

the Public Day School, S.S. was not offered a normal academic curriculum. Leone Rpt. ¶ 85.

Despite his interest in art and theater, S.S. had no ability to engage in these activities at the

Public Day School (as it lacks arts programming) and was not offered any opportunity to gain

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exposure to the arts in the neighborhood schools. Leone Rpt. ¶ 86. S.S.’s academic performance
has been well below his potential and significantly less that he would have achieved in a
neighborhood school with SBBS. Leone Rpt. ¶ 85.
III. LEGAL ARGUMENT
Class certification in this case should be uncontroversial. Courts around the country
routinely certify classes in similar ADA cases.9 See Appendix 1 (listing cases certifying classes
9 The virtually unbroken and extensive line of decisions in ADA and similar cases supports class certification here. Certifying the class here is also fully consistent with the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Since 2011, courts have cited Wal-Mart in support of class certification in Title II and other ADA cases. See, e.g., Kenneth R. ex rel. Tri-Cty. CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 265-67 (D.N.H. 2013) (“Kenneth R.”) (certifying class of individuals with a mental health disability who were—or were at serious risk of being—institutionalized where “[s]ubstantial evidence suggests that the State’s policies and practices have created a systemic deficiency in the availability of community-based mental health services, and that that deficiency is the source of the harm alleged by all class members”); O’Toole v. Cuomo, Order 13-cv-04166-NGG-MDG (E.D.N.Y. Nov. 20, 2013) (certifying class of adults with serious mental illness who were consigned to substandard board and care homes because they lacked access to community services), attached as Appendix 2; Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 295-96 (D. Mass. 2011) (“Connor I”) (certifying a class of foster children who alleged systemic deficiencies, although the harm suffered by unnamed class members differed from the harm experienced by named plaintiffs); Van Meter v. Harvey, 272 F.R.D. 274, 282-84 (D. Me. 2011) (certifying class where plaintiffs alleged a systemic problem with state screening procedures for nursing facilities and sought systemic relief); Steward v. Janek, No. 5:10-CV-1025-OLG (W.D. Tex. May 20, 2016) (certified class of certain individuals with intellectual and developmental disabilities residing in, in the future will reside in, or should be screened for admission to nursing facilities), pet. for appeal under Fed.R.Civ.P 23(f) pending, Steward v. Janek, No. 16-90019 (5th Cir. June 6, 2016), attached as Appendix 3; O.B. v. Norwood, No. 15 C 10463, 2016 WL 2866132 (N.D. Ill. May 17, 2016) (certifying a class of Medicaid-eligible children under 21 in Illinois who have been approved for but are not receiving in-home shift nursing services); Williams v. Conway, 312 F.R.D. 248 (N.D.N.Y. 2015) (certifying a class of all present and future deaf and hearingimpaired prisoners denied rights and privileges accorded to all other prisoners.); Dunakin v. Quigley, 99 F. Supp. 3d 1297 (W.D. Wash. 2015) (certified class of nursing home residents with intellectual and developmental disabilities), pet. for appeal under Fed. R. Civ. P. 23(f) denied, Dunakin v. Quigley, No. 15-80076 (9th Cir. Aug. 10, 2015); Thorpe v District of Columbia, 303 F.R.D. 120 (D.D.C. 2014), leave to appeal denied, In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015) (certifying a class of individuals with physical disabilities in, or at risk of
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in ADA matters). The student class satisfies each of Rule 23(a)’s four requirements: (1) Numerosity: the
class is so numerous that joinder of all members is impracticable; (2) Commonality: the claims of the class share common questions of law or fact; (3) Typicality: the claims of the named representative are typical of those of the class; and (4) Adequacy: the named representative would vigorously represent the class. See Griffin v. Burns, 570 F.2d 1065, 1072 (1st Cir. 1978).
Rule 23(b)(2) is also satisfied. Springfield has acted or refused to act on grounds generally applicable to the class as a whole, and Plaintiffs seek declaratory and injunctive relief to benefit the class as a whole. Indeed, civil rights actions, like this one, “‘against parties charged with unlawful, class-based discrimination are prime examples’ of what [Rule 23] (b)(2) is meant to capture.” Wal-Mart, 564 U.S. 338, 361 (2011) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
Finally, undersigned counsel meet the requirements of Rule 23(g). A. The Record Is Sufficient For Class Certification. This case has been litigated for nearly three years. The claims have survived a motion to dismiss. The record supporting class certification includes declarations, exhibits from document discovery, and the report of a nationally-recognized expert specifically focused on the issues of

institutionalization in, nursing facilities who lacked access to community services); see also N.B. v. Hamos, 26 F. Supp. 3d 756 (N.D. Ill. 2014) (granting class certification in action seeking injunctive relief for violations of Title II based on the denial of community-based services); Lane v. Kitzhaber, 283 F.R.D. 587 (D. Or. 2012) (certifying a class of persons with developmental disabilities in segregated employment workshops, rejecting defendants’ claims that class members’ different abilities and needs precluded certification); Gray v. Golden Gate Nat’l Recreational Area, 866 F. Supp. 2d 1129, 1142 (N.D. Cal. 2011) (certifying a class of persons with mobility and/or vision disabilities denied programmatic access due to barriers at certain park sites).

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commonality and typicality. The cases do not require more to certify a class.

Importantly, the Supreme Court has rejected any requirement that plaintiffs prove the

merits of their legal claims before a class is certified. See Amgen Inc. v. Conn. Ret. Plans & Tr.

Funds, 133 S. Ct. 1184, 1194-95 (2013). In Amgen, the Court made clear there should be no

“mini-trial” on the merits to determine whether a class is worthy of certification. Id. at 1201. To

the contrary, “[m]erits questions may be considered to the extent—but only to the extent—that

they are relevant to determining whether the Rule 23 prerequisites for class certification are

satisfied.” Amgen Inc., 133 S. Ct. at 1194-95 (citing Wal-Mart, 564 U.S. at 351 n.6); see also

Fed. R. Civ. P. 23 advisory committee’s note to 2003 amendment (“[A]n evaluation of the

probable outcome on the merits is not properly part of the certification decision.”).

B. The Claims Satisfy Rule 23(a) 1. The Class Is So Numerous That Joinder Is Impractical
“The class is so numerous that joinder of all members is impracticable.” Rule 23(a)(1).

At the September 23, 2015 status conference, Defendants largely conceded that the proposed

class satisfies the numerosity requirement. Transcript of Initial Scheduling Conference Before

Magistrate Judge Robertson, September 23, 2015, 13:8-9 (“There’s more than 40 people. I know

that. I don’t think numerosity is the issue.”) Insofar as numerosity is contested, the court may

take judicial notice that it would be “impracticable” under Rule 23(a)(1) to join more than 200

separate children with disabilities, many of whom come from impoverished backgrounds and

lack resources to file separate actions.

Requiring joinder would create hurdles without changing the factual questions, the legal

issues, or, if Plaintiffs are successful, the scope of relief. It would be a waste of this Court’s and

the parties’ resources.

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2. The Claims Share Common Questions of Law and Fact.

This case meets both parts of the commonality test in Wal-Mart v. Dukes, 564 U.S. 338

(2011).

First, Plaintiffs’ claims “depend upon …common contention[s],” and allege that members

of the Student Class have “suffered the same injur[ies].” Id. at 350. Essentially, Plaintiffs

contend, in Dr. Leone’s words, that Springfield’s systemic denial of SBBS “harms all students in

the class.” See Leone Rpt. ¶ 54. Specifically Plaintiffs allege that, by denying SBBS to the

class, Springfield:

1. “Afford[s] [the student class] an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others,” 28 C.F.R. § 35.130(b)(1)(ii);

2. “Provide[s] [the student class] an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others,” 28 C.F.R. § 35.130(b)(1)(iii);

3. Fails to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” 28 C.F.R. § 35.130(d), which the Attorney General has defined as “a setting that enables individuals with disabilities to interact with non- disabled persons to the fullest extent possible,” 28 C.F.R. pt. 35, App. B, p. 674.

4. Fails to “make reasonable modifications . . . necessary to avoid discrimination,” 28 C.F.R.§ 35.130(b)(7).

5. [U]tilize[s] criteria or methods of administration . . . [t]hat have the . . . effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities,” 28 C.F.R. § 35.130(b)(3)(ii).

Second, the Class’s “common contention[s] . . . [are] capable of classwide resolution.”

Wal-Mart, 564 U.S. at 350. Either Springfield has violated the ADA by failing to provide SBBS

to the class or it has not. And “determination of [the] truth or falsity” of that question “will

resolve an issue that is central to the validity of each [class member’s] claims in one stroke.” Id.

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These circumstances create a textbook example of commonality. “To begin with, class

suits for injunctive or declaratory relief by their very nature often present common questions

satisfying Rule 23(a)(2).” 7A Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure, § 1763 (2016). And in injunctive cases by individuals with disabilities challenging

the adequacy of public services under the ADA, courts almost always find commonality. And

courts have certified classes in every recent ADA case alleging, as Plaintiffs do here, that a

public entity violated the ADA by denying individuals with disabilities the services they need to

avoid being segregated from their peers. See n.9, supra.

By way of example, the court in Kenneth R., certified a statewide class of plaintiffs

institutionalized for psychiatric treatment at two different facilities. The Kenneth R. class alleged

that New Hampshire violated the ADA by failing to provide particular community-based

services—just as the class here alleges that Springfield violates the ADA by not providing SBBS

in the neighborhood schools. Kenneth R. ex rel. Tri-Cty. CAP, Inc./GS v. Hassan, 293 F.R.D.

254, 265-67 (D.N.H. 2013). In finding Rule 23(a)(2) satisfied, the Kenneth R. court saw

“common questions susceptible to common answers” including—as is the case here—“whether

there is a systemic deficiency in the availability of community-based services, and whether that

deficiency follows from the [defendant’s] policies and practices[.]” Id. at 267.

Another court reached the same conclusion in a more recent ADA case, Steward v.

Janek, No. 5:10-CV-1025-OLG (W.D. Tex. May 20, 2016), pet. for appeal under

Fed.R.Civ.P 23(f) pending, Steward v. Janek, No. 16-90019 (5th Cir. June 6, 2016). Steward

was brought by individuals with disabilities alleging that they were denied services needed to

live in the community with their peers instead of in segregated nursing facilities. Considering a

record similar to that here, the Steward court found that the class was bound by common

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questions of law and fact, such as whether nursing home placement could be avoided through

community-based services. Id., at 14.

As in Kenneth R. and Steward (and many other ADA class actions, see, e.g., n.9 supra),

Springfield’s “practices plaintiffs challenge here all pertain to a discrete set of . . . services[.]”

Kenneth R., 293 F.R.D. at 268. Springfield “may fail individual class members in unique ways,

but the harm that the class members allege is the same”—a denial of particular services that

compromises their rights under the ADA. Steward, at 14. These claims meet Rule 23(a)(2).

3. S.S.’s Claims Are Typical of the Class. “Typicality” under Rule 23(a)(3) “tend[s] to merge” with “commonality. Wal-Mart, 564

U.S. at 349 n.5. As the Court’s statement suggests, Rule 23(a)(3) is satisfied here for much the

same reason that Rule 23(a)(2) is satisfied. Named plaintiff S.S. “possess[es] the same interest

and suffer[ed] the same injury as the class members.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.

147, 156 (1982) (internal quotation marks omitted). S.S., like every other member of the class,

alleges that Springfield violated the ADA by failing to provide SBBS at the neighborhood

schools. As a result, S.S., like every other member of the class, was removed from, and denied

the opportunity to be educated in, a neighborhood school. Accordingly, S.S.’s claims are typical

of the class under Rule 23(a)(3).

It does not matter that the class is not composed of identical clones. “If the claims arise

from a similar course of conduct and share the same legal theory, factual differences will not

defeat typicality.” Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002). Courts in this

Circuit have recognized that typicality exists whenever the plaintiffs’ claims “arise from the

same event or practice or course of conduct that gives rise to the claims of other class members”

and are “based on the same legal theory.” Tyrell v. Toumpas, No. 09-cv-243-JD, 2010 WL

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174287, at *5 (D.N.H. Jan. 14, 2010) (quoting Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009)); Guckenberger v. Boston Univ., 957 F. Supp. 306, 326 (D. Mass. 1997) (class representatives’ claims typical of a class of over 400 students with different disabilities because class representative and class members were subject to the same discriminatory policy and practice); Connor I, 272 F.R.D. at 296-97; Rolland v. Cellucci, No. CIV A 98-30208-KPN, 1999 WL 34815562 at, *7 (D. Mass. Feb. 2, 1999) (typicality present in ADA case although “individual class members may have somewhat different needs, or may have entered the [segregated placements] through different processes”).10 The claims here fit neatly into the typicality standard.
4. S.S. Will Fairly And Adequately Represent The Class’s Interests. Rule 23(a)(4) is rarely at issue in injunctive actions against public defendants and its requirements are met here. S.S. and the other named Plaintiffs “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Rule 23(a)(4) is aimed at avoiding “conflicts that are fundamental to the suit and that go to the heart of the litigation[.]” Newberg on Class Actions § 3:58 (5th ed.); see also Matamoros v. Starbucks Corp., 699 F.3d 129, 138 (1st Cir. 2012) (quoting Newberg). Here, “the interests of the representative party will not conflict with the interests of any of the class members[.]” Andrews v. Bechtel Power Corp., 780

10 See also Serventi v. Bucks Technical High Sch., 225 F.R.D. 159, 165 (E.D. Pa. 2004) (“Named plaintiffs and class members were all unable to access the vocational education services of the only public vocational school that serves their school districts, and thus were unable to take advantage of the range of vocational programs that were available to students who were not disabled. Therefore, the typicality requirement of Rule 23(a)(3) is satisfied.”); Marisol A. v. Giuliani, 929 F. Supp. 662, 691 (S.D.N.Y. 1996) (certifying class under ADA: “Where, as here, an action challenges a pattern of activity, the named plaintiffs can represent class members who suffer different injury ‘so long as all the injuries are shown to result from the practice.’”) (quoting Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994)).

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F.2d 124, 130 (1st Cir. 1985). Accordingly, Rule 23(a)(4) is satisfied.

C. Class Resolution is Appropriate Under Rule 23(b)(2) “Rule 23(b)(2) was intended for civil rights cases” like this one. In re District of

Columbia, 792 F.3d 96, 102 (D.C. Cir. 2015). The Supreme Court has stated that civil rights

actions “‘against parties charged with unlawful, class-based discrimination are prime examples’

of what [Rule 23] (b)(2) is meant to capture.” Wal-Mart, 564 U.S. at 361 (quoting Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997)); see also 7A Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 1776 (3d ed. 2005) (stating that a

Rule 23(b)(2) class suit “is a uniquely appropriate procedure in civil-rights cases, which

generally involve an allegation of discrimination against a group as well as the violation of rights

of particular individuals”); Hawkins ex rel v. Comm’r of the New Hampshire Dept. of Health and

Human Servs., No. Civ. 99-143-JD, 2004 WL 166722 at *4 (D.N.H., Jan 23, 2004) (“Classes

certified under Rule 23(b)(2) ‘frequently serve as the vehicle for civil rights actions and other

institutional reform cases,’ including cases alleging deficiencies in government administered

programs”) (quoting Baby Neal, 43 F.3d at 58-59); see also Baby Neal, 43 F.3d at 57 (“Indeed,

(b)(2) classes have been certified in a legion of civil rights cases where commonality findings

were based primarily on the fact that defendant’s conduct is central to the claims of all class

members irrespective of their individual circumstances and the disparate effects of the

conduct.”).

Rule 23(b)(2) is satisfied here because “the party opposing the class has acted or

refuse[d] to act on grounds generally applicable to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole.” Chicago

Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426, 441 (7th Cir.

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2015). Here, Plaintiffs allege systemic civil rights violations and asks only for injunctive relief requiring Springfield to provide SBBS in neighborhood schools.
It is immaterial that, if the class wins and receives the requested relief, individual class members might subsequently seek additional individualized relief in separate proceedings, such as their IEP hearings. “[T]he fact that the plaintiffs might [later] require individualized relief does not preclude certification of a class for common equitable relief.” Chicago Teachers, 797 F.3d at 442.
D. Class Counsel Should Be Appointed Pursuant to Rule 23(g) Proposed class counsel described their qualifications in connection with the initial motion for class certification. ECF no. 97. In the three years this case has been ongoing, no member of the class, defendant, or other person, has objected to counsel’s adequacy. This record is sufficient to appoint class counsel. See, e.g., Reid v. Donelan, 297 F.R.D. 185, 194 (D. Mass. 2014) (Ponsor, J.), (appointing class counsel where “counsel have already devoted significant resources to this case, [] no evidence suggests that their level of commitment will diminish[,] and [n]o cogent argument can be made that Plaintiff's counsel do not satisfy the relevant requirements or . . . cannot adequately represent the interests of the class”). In further support, attorneys from the Center for Public Representation and the Bazelon Center for Mental Health Law have submitted affidavits attesting to their qualifications and experience. Bohenek Decl. Ex. 41, Declaration of Robert D. Fleischner, and Ex. 42, Declaration of Ira A. Burnim. Information regarding attorneys at Morgan Lewis is available at www.morganlewis.com. See Fed. R. Civ. P. 23(g)(1)(c).

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IV. CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that the Court certify a
class consisting of: All students with a mental health disability who are or have been enrolled in Springfield Public Day School who are not being educated in a Springfield neighborhood school. In addition, Plaintiffs respectfully request that the Court appoint CPR, the Bazelon Center, and Morgan Lewis as co-class counsel.

Dated: July 15, 2016
Ira Burnim* Jennifer Mathis* BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, N.W., Suite 1212 Washington, D.C. 20005 (202) 467-5730 jenniferm@bazelon.org irab@bazelon.org
Robert Fleischner, BBO # 171320 Deborah A. Dorfman, BBO # 625003 Sandra J. Staub, BBO # 555544 CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 (413) 586-6024 rfleischner@cpr-ma.org ddorfman@cpr-ma.org sstaub@cpr-ma.org
* admitted pro hac vice

Respectfully submitted,
S.S., a minor, by his mother, S.Y., on behalf of himself and other similarly situated students, the PARENT/PROFESSIONAL ADVOCACY LEAGUE, and THE DISABILITY LAW CENTER,
By their Attorneys,
/s/ Matthew T. Bohenek Robert E. McDonnell, BBO # 331470 Michael D. Blanchard, BBO # 636860 Jeff Goldman, BBO # 660870 Elizabeth M. Bresnahan, BBO # 672577 Jacqueline S. Delbasty, BBO # 676284 Matthew T. Bohenek, BBO # 684659 MORGAN, LEWIS & BOCKIUS LLP 1 Federal Street Boston, MA 02110 (617) 951-8000 robert.mcdonnell@morganlewis.com michael.blanchard@morganlewis.com jeff.goldman@morganlewis.com elizabeth.bresnahan@morganlewis.com jacqueline.delbasty@morganlewis.com

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CERTIFICATE OF SERVICE I, Matthew T. Bohenek, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on July 15, 2016.
/s/ Matthew T. Bohenek Matthew T. Bohenek, Esq.

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 Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 1of 84
Exhibit A

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Statement in Support of Class Certification, S.S. v. City of Springfield

May 16, 2016 Peter E. Leone, Ph.D.

I. Introduction

1.

The purpose of this report is to summarize my review of records and information

relating to the case captioned S.S. v. City of Springfield (the "action") and to state my current

findings and conclusions based on this review . I am confident that my conclusions are supported

by the materials and information that I have reviewed .

II. Background and Experience

2.

I am a researcher and Professor of Special Education in the College of Education

at the University of Maryland. I have been a faculty member at the University of Maryland since

1981. My office is located at 3112 Benjamin Building, College Park, Maryland 20742 .

3.

I graduated from the University of Washington in 1981 with a Doctor of

Philosophy degree in Special Education . Prior to completing my Ph.D., I attended the University

oflowa from 1968 through 1974, earning my Bachelor of Arts in History in 1972 and my Masters

of Arts in Special Education in 1974. My curriculum vitae is attached as Exhibit 1.

4.

My background includes teaching children with mental health disabilities in a

neighborhood public school setting. For four years I taught adolescents with mental health

disabilities in grades 7-9 at Central Junior High (1974-76) and Northwest Junior High (1976-78)

in the Iowa City, IA public schools. During that time I was employed by Child Psychiatry Service

of the University of Iowa (1974-77) and by the Grant Wood Area Education Agency (1977-78).

The students that I taught were those with the most significant behavioral problems in the

community. Many were medicated and all received positive behavioral supports in the

neighborhood public schools.

1

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 3of 84

5.

For more than 30 years as a faculty member at the University of Maryland, I have

trained teachers, studied education programs and supports for children with mental health

disabilities, and have worked with schools and school districts to improve services and outcomes

for children with disabilities, including those with the most significant behavioral challenges.

From 1993 to 1998 I directed the Center for the Study of Troubling Behavior, a state-wide

technical assistance project at the University of Maryland that supported schools and school

districts serving children with emotional and behavioral needs in the schools.

6.

During the past 25 years I have also worked with school districts, the courts, the

Office for Civil Rights at the US Department of Justice, and several non-profit law firms as an

expert, monitor, and special master in matters involving education services for children and adults

with disabilities. During the 2014-15 school year, I worked with the Pennsylvania Department of

Education to examine the quality of alternative education programs in that state.

7.

I have edited a book, Understanding Troubled and Troubling Youth (Sage, 1990)

and have published more than 70 chapters, research reports, monographs, and policy papers

related to education services and youth with disabilities. For the past twenty years, I have served

as a consulting editor for the Journal of Emotional and Behavioral Disorders.

III. Methodology

8.

I conducted a study of a statistically valid random sample of students currently

attending the Springfield Public Schools ("SPS") Public Day School ("sample"). I also

supplemented this study of a random sample of Public Day School students with a study of a

group of students outside of the sample ("supplemental review").

9.

The sample included 24 students. The supplemental review included an additional

16 students. Both the sample and the supplemental review included interviews of students and/or

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their parents as well as a review of their student records and other relevant documents. I interviewed in person 12 students in the random sample and/or their families.
10. Additionally, I reviewed records, data, reports and documents, as set forth below in Section IV and in the list of materials reviewed attached as Exhibit 2.
11. Finally, as part of my review, I interviewed local community mental health providers and advocates who work with Public Day School students.
A. Sample 12. In January through May of 2016, I conducted a review of 24 students currently enrolled in the SPS Public Day School. These 24 students were randomly selected from a list of all of students currently enrolled in the Public Day School provided by Defendants to the Plaintiffs' attorneys. This procedure was adopted in order that the sample provide sufficient basis to enable generalization of findings to the population of all students enrolled at the SPS Public Day School. The methodology that I used to select the random sample is described below in paragraphs 13 and 14 of this Report. 13. Inor about late November 2015, I received a list of 233 students who were enrolled in the SPS Public Day School at the elementary, middle, and high school campuses. I determined, based on my professional training and experience, that a sample of ten percent of the population of children in the Public Day School would represent a statistically valid sample. Each of the 233 children was assigned a consecutive number. I used a random number generator to select students for interviews and file reviews. 14. After the random sample was generated, letters were sent to 125 parents of students in the SPS Public Day School. Twenty-five parents returned letters indicating their willingness to participate in my study. One parent subsequently withdrew consent and another
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agreed to participate too late to be included in the sample. The final sample, therefore, included 24 children-all of whom are enrolled in the SPS Public Day School.
15. Of the 24 students participating in the random review, 2 were enrolled at the elementary school campus, 7 were enrolled at the middle school campus and 15 were enrolled at the high school campus of the Public Day School. Twenty were boys and 4 were girls.
16. InJanuary 2016, I interviewed parents and guardians of 12 of the 24 students in the sample. Of these 12 students, there were 11 boys and one girl. Seven of the students were enrolled at the Public Day School high school campus, five were enrolled at the Public Day School middle school campus, and two were enrolled in the Public Day School elementary school campus. Families were interviewed in a conference room at the Marriott Hotel in Springfield or at the Committee for Public Counsel Services Youth Advocacy Division ("YAD") offices in Springfield. One family was interviewed at home. Each family was interviewed independently. Prior to interviewing the families I asked each if they were participating voluntarily. All confirmed that this was the case.
17. Following my interviews, I reviewed student educational records from SPS for all 24 students randomly selected to participate in the sample.
B. Supplemental Review 18. I also reviewed the records of 16 students currently or previously enrolled in the SPS Public Day School who were not part of the random sample, including the named plaintiff, S.S., and the exemplar in the First Amended Complaint, N.D. In November of 2013 and May of 2015, I interviewed 7 families of these children. These interviews were conducted at parents' homes and at YAD in Springfield. Additionally, in January of 2016, I interviewed one additional parent and conducted a second interview of another parent, both of whom had children enrolled in the Public Day School.
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19. Following my interviews, I reviewed the educational records of these children from SPS.
20. I interviewed named plaintiff S.S.'s mother on two occasions-once in November of 2013 and once in May of 2015. I also interviewed S.S.'s stepfather on one occasion in November of 2013.
21. This methodology provides, in my opinion, an adequate basis for my conclusions. As an expert in the field of special education and education of students with mental health disabilities, I have based this report on methods that are accepted in my field and that would constitute an adequate basis to state conclusions in a peer-reviewed publication . IV. Documents Reviewed
22. The student files I reviewed for the 24 students in the random sample contained grades, psychological reports, disciplinary incident logs and reports, individualized education programs ("IEPs"), and correspondence, among other documents.
23. As noted above, I also reviewed the records of 16 students currently or previously enrolled in the SPS Public Day School who were not part of the random sample, including the Named Plaintiff, S.S. and the exemplar in the First Amended Complaint, N.D.
24. In 2013, SPS provided plaintiffs' counsel copies of 510 IEPs of students identified by SPS as having emotional and behavioral disorders. I reviewed 130 of these IEPs; all personally identifiable information in them was redacted.
25. I also examined data and reports from the Department of Elementary and Secondary Education ("DESE") concerning suspensions and graduation rates of SPS students. In addition, I reviewed numerous policies of and other documents from SPS.
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26. I reviewed S.S.'s complete educational record from SPS as well as S.S.'s psychiatric treatment and related records. Additionally, I reviewed the transcript of the administrative hearing that S.S. brought against SPS, prior to initiating this lawsuit, as well as all of the exhibits admitted into evidence at the hearing.
27. I reviewed the entire SPS school record for N.D., a student exemplar in the First Amended Complaint, as well as some of N.D.'s psychiatric treatment records and other related records for N.D.
28. A complete list of the materials that I reviewed is attached hereto as Exhibit 2. V. Findings
A. Summary of General Conclusions 29. The proposed class ("class") in this case consists of all children with a mental health disability who are or have been enrolled in SPS Public Day School and who are not being educated in SPS neighborhood elementary and middle schools and the SPS comprehensive high schools (together referred to as "neighborhood schools"). 30. Class members have been placed in the SPS Public Day School because they experienced behavioral difficulties in their neighborhood schools. In order to be educated in the neighborhood schools, these children need a common set of services. These services consist of: (a) a comprehensive assessment that determines the purpose of and antecedents for the child's behavior, (b) a school based intervention plan that relies on positive support, social skills training, a care coordinator, and adjustments to curriculum and schedule, (c) training for school staff and parents in implementing the plan, and (d) coordination with mental health providers who are involved with the child. The Complaint in this case refers to this common set of services as "school based behavior services" and I use that term or "SBBS" to refer to these services for purposes of this report.
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31. The SPS neighborhood schools do not offer SBBS that would allow class members to avoid placement in the segregated SPS Public Day School. Lack of SBBS at SPS's neighborhood schools prompted SPS to place them in the SPS Public Day School. Prior to placing these children at the Public Day School, SPS often placed these children in what is referred to as the Social Emotional Behavioral Supports Program, or "SEBS" program which is a segregated program in the neighborhood schools. Based on my review, SPS fails to provide appropriate SBBS to these children in their regular classrooms or in the SEBS program, and as a result, SPS ultimately transferred children to the SPS Public Day School.
32. As a result of my review, I can state with confidence as a special education professional that the class could successfully be educated in an integrated setting in their neighborhood schools if afforded appropriate SBBS.
33. Inaddition to being denied the opportunity to be educated in their neighborhood schools, the children placed in the SPS Public Day School receive an inferior education and are denied services, activities, and supports that SPS students who are educated in their neighborhood elementary and middle schools and in the high schools routinely receive.
34. Children placed in the SPS Public Day School are deprived of courses, extracurricular activities, and events available to students in other SPS elementary, middle, and high schools. They are also provided with what amounts to almost one semester less education than their peers who attend neighborhood schools because, by policy, the graduation requirements for the SPS Public Day School require substantially fewer credits than do SPS's neighborhood schools.
35. Even if SBBS were provided in the Public Day School, because SPS needlessly segregates children with mental health disabilities, the Public Day School would still be
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inappropriate for the class. The segregation of children with mental health disabilities in an educational setting apart from their non-disabled peers is itself harmful and results in poor outcomes. Further, students who are segregated for having mental health disabilities suffer a stigma as a result of that segregation, not only as children but, often, for their entire lives.
36. The students in the class are within the range typical of students with mental health disabilities discussed in the professional literature concerning the education of students with mental disabilities in their neighborhood schools. In my experience as a special education professional, I have encountered students like these with mental health disabilities educated in neighborhood schools. They do not exhibit behaviors or have disabilities that stand out as extraordinary.
37. In my review of the sample and in my supplemental review, I have found that the experience of the named plaintiff, S.S., closely resembles that of the other children in the class. I have concluded that S.S., like the other children in the class:
a. Has mental health disabilities. b. Could be educated successfully in an integrated setting given appropriate SBBS. c. Was not provided by SPS with even minimally adequate SBBS while he was
enrolled in integrated schools. d. Was transferred to the Public Day School. e. While at the Public Day School received unequal and substandard academic
opportunities. f. While at the Public Day School received unequal and substandard extracurricular
opportunities.
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g. While at the Public Day School received grossly inadequate and inappropriate support for his mental health disabilities.
h. While at the Public Day School was unnecessarily stigmatized and disadvantaged through his segregation from the SPS student population in the neighborhood schools.
38. For every student who was placed in the Public Day School from the neighborhood schools, the records show that SPS failed to provide appropriate SBBS in the neighborhood schools prior to the students' transfer to the Public Day School.
39. Every student file I reviewed failed to provide an adequate explanation as to why the student could not be educated in a neighborhood school. Inmy experience, as a special educator, students like those in the sample and in the supplemental review can be appropriately educated in their neighborhood school.
40. Similarly, every student file that I reviewed revealed that SPS provided inferior education opportunities at the Public Day School.
B. SPS has a common practice of failing to provide SBBS to S.S. and members of the class in the neighborhood schools, thereby denying these children equal educational opportunity.
41. There is a professional consensus that students like those in the class require SBBS in order to be successfully educated in neighborhood schools. There is also a professional consensus that such students require SBBS in order to have the same opportunity to learn, advance from grade to grade, and graduate as students without disabilities. There is a professional consensus that such students require SBBS in order to attend neighborhood schools along with their peers without disabilities. Professionals in education and mental health believe that SBBS are essential in order to keep students such as those in the class in their neighborhood schools. SPS's failure to provide such services to students harms these children. Itdenies them the same
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opportunity to learn, advance from grade to grade, and graduate as is afforded their peers without disabilities, and it denies them the opportunity to attend a neighborhood school along with students without disabilities.
42. In my opinion, SPS systematically denies students in the class the SBBS they need to enjoy equal educational opportunity and to be educated in neighborhood schools. Based on my examination of the experiences of students with mental health disabilities who have been placed in the Public Day School, my opinion is that none of these students whose records I reviewed received SBBS in the neighborhood schools before being placed in the Public Day School. It is also my opinion that it is highly unlikely that any other students in the class receive SBBS in their neighborhood schools before being placed in the Public Day School. SPS fails to provide these students with the school based supports that would allow them to manage behaviors related to their mental health disabilities or academic adjustments needed to accommodate their mental health disabilities.
43. For example, SPS does not provide these students with appropriate assessments to determine, among other things, the purposes of and antecedents to their behaviors . SPS does not provide effective intervention plans that rely on positive support, social skills training, a care coordinator, and necessary curriculum or schedule adjustments. SPS fails to coordinate with or train parents to provide consistent interventions for the students and engaged in little to no coordination with outside providers. As a result of SPS's failure to provide SBBS, students are removed from neighborhood schools and placed in the Public Day School. If SPS provided school based behavior services in its neighborhood schools, there would be evidence of this practice in the school records that I reviewed. However, I did not find such evidence. Moreover, when I interviewed students and their parents, they did not report receiving such services.
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44. If SPS had a practice of providing SBBS in its neighborhood schools, there would not be more than 200 students at the Public Day School whose disability-related behavior, SPS believes, require their removal from neighborhood schools.
45. The stories of individual students reflect the systemic problems described above. K. L. was enrolled inthe SEBS program at Commerce High School in the SPS before being placed in the Public Day School. She had a history of behavioral problems caused by her mental health disabilities, which include anxiety disorder and depression. Her records indicate that she did not receive SBBS that would have addressed these behaviors. With such services, K.L. could be educated in a neighborhood school. While at Commerce High School, K.L. was involved in a verbal altercation with another girl. As the teacher was attempting to deescalate the situation, a police officer (referred to by SPS as a Quebec officer) arrived on the scene. According to the teacher, although K.L. was not the instigator of the situation and was visibly agitated, the police officer attempted to handcuff her. K.L.'s hand hit the officer's thigh and she was charged with disturbing a school, assault and battery on a police officer, and resisting arrest. This is an example of a situation where SBBS-instead of police involvement-would have had a positive impact on the outcome. A school with adequate SBBS would not respond to such mental-health related behaviors by calling in law enforcement. A school with adequate SBBS would also not need to transfer a student to the SPS Public Day School.
46. K. H. was enrolled at Van Sickle Middle School during the 2010-11 academic year in the SEBS program. His IEP developed in January 2011 noted that he was able to complete "grade level curriculum" but that it was difficult for him to do so without staff support. The IEP also noted that he was able to consistently participate insome integrated classes, such as instructional technology class and PE, even without adequate support. K.H. is, like other members
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of the class, a child who exhibits symptoms of a mental health disability but could successfully be
educated in a neighborhood school that employed SBBS. Rather than providing SBBS, however,
SPS placed K.H. at the SPS Public Day School middle school campus. My review leads me to
conclude that placing K.H. in the Public Day School hindered his academic and extracurricular
progress and failed to help him compensate for his disability.
47. Each sample student's individualized plan cites the reason for their placement in
the Public Day School. Nearly all use boilerplate language-identical word for word. Some IEPs
use the following boilerplate language:
The nature of the student's disability(ies), as previously described under Student Strength s and Key Evaluation Results Summary, requires removal from the regular education classroom in order for the student to receive a free, appropriate public education (FAPE). Supplementary aids and services provided within the regular education classroom will not allow the student to reasonably access and progress in the general curriculum, therefore, removal from the regular education environment is considered the least restrictive environment (LRE).
48. Others use the language:
Due to the student's social/emotional/behavioral and learning issues, it is critical that the student be removed from the general education classroom in order to receive instruction in a small class setting with an embedded therapeutic component. This type of program will provide consistent routine, as well as continuous support, throughout the entire school day and help to facilitate the most effective student progress toward the student's IEP goals.
49. Both versions fail to specify, directly or by reference, the SBBS that have been
provided for these specific students. The language used is generic and not specific to the student.
This pattern is, based on my experience, unusual and indicative that SPS failed to employ the
SBBS recognized in the professional community as effective. Itindicates that the process is not
thoughtful, individualized, or deliberative.
50. The records of the sample students demonstrate a pattern of SPS failing to make
any serious effort to employ SBBS prior to transferring class members to the Public Day School.
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The records reveal a uniform failure by SPS to provide SBBS, including by conducting effective behavioral assessments, and developing and implementing effective behavioral intervention plans for these sample students prior to their placement at the Public Day School. Instead, SPS punished the children for their behavior resulting from their disabilities by repeatedly suspending, restraining, and/or isolating them. These actions by SPS are inappropriate . They constitute not accommodation of a disabling condition but punishment for a disability.
51. My supplemental review confirmed what the sample indicated: a wholesale failure by SPS to provide SBBS inthe neighborhood schools.
52. My examination of 130 redacted IEPs (see paragraph 24 above) likewise shows a pattern of SPS failing to provide SBBS.
53. The records of the students I reviewed are replete with inappropriate admonitions to these students to "control" their behavior .
54. The service plans for these children often repeat the same boilerplate language in one plan after another. Some files include documents with an incorrect name of the child and references in the plans that appear to have been developed for another child. Based on my interviews and review of the records, SPS's response to students' mental health needs suggests that one size fits all. This systemic practice harms all students in the class.
55. S.S.'s experience is typical of students in the class. 56. Until he was in fifth grade, S.S. was enrolled in one of the SPS neighborhood schools. While at the neighborhood schools, S.S. did not receive the SBBS that he needed for his mental health disabilities, which include Depression, Attention Deficit Hyperactivity Disorder, Attention Deficit Disorder, and a mood disorder.
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57. S.S., as a result of his mental health disabilities, often engaged in behavior such as refusing to stay in his seat or in class, running around the school building, and swearing at the teachers.
58. S.S.'s behavioral problems could have been managed effectively with SBBS. 59. Instead, S.S.'s disabilities were treated with inappropriate methods likely to exacerbate his behaviors rather than extinguish them. SPS routinely removed S.S. from the classroom, and often suspended or otherwise sent him home. SPS failed to teach S.S. alternative coping skills to help him to learn ways to stay in class. 60. Beginning in the fifth grade, S.S. was enrolled in the Public Day School. 61. The experience of W.C., a student in the supplemental review, provides another example of SPS's failure to provide SBBS before moving to segregate him in the Public Day School. In elementary school W.C. was placed in a SEBS program. His records show both behavioral and academic difficulties. Eventually, he arrived at Chestnut, a middle school, where his behavioral and academic difficulties continued. His records indicate that SPS did not provide any meaningful assessment or evaluation of his behavioral challenges until the fall of 2010 when W.C. was in the eighth grade. At that time a psychological evaluation was conducted that included recommendations for a "behavior management plan" among other services. After this evaluation, the first behavior intervention plan for W.C. appeared in his record-dated March 1, 2011. Days later, before any opportunity for meaningful implementation of this plan, SPS decided to place W.C. in the Public Day School. 62. A.Mu., another example from my supplemental review, is a child who is intellectually curious with a range of interests. His IEP from the neighborhood school stated that he "enjoys reading and hands on math activities at school." A.Mu. appears to have average
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athletic ability and enjoys playing basketball. A.Mu. was identified as needing special education services in the first grade and has been diagnosed with attention-deficit hyperactivity disorder with explosive outbursts, affective deregulation, and a mood disorder. A.Mu.'s mental health disability was, from an early age, aggravated by his not receiving SBBS. A school psychologist noted in A.Mu.'s file that his disability is "triggered primarily in the school environment." This pattern of behavior is not uncommon in special education students. Such children can be educated successfully in neighborhood schools if the triggers or antecedents present in the school environment are managed appropriately.
63. A.Mu. 's challenges are not unusual for children with mental health disabilities. Children similar to A.Mu. can be-and are-successfully educated in neighborhood schools. Given SBBS, students similar to A.Mu. can achieve grade-level performance in academics, participate in extracurricular activities, and learn to compensate for their mental health challenges in a way that equips them to function productively as adults.
64. While at the neighborhood schools, and as a very young child, A.Mu. was routinely punished for behaviors that were symptomatic of his disability.For example, when only eight years old, A.Mu. received a 10-30 day suspension for behaviors that SPS eventually acknowledged were symptomatic of his disability.
65. SPS's lack of SBBS caused A.Mu . to fall behind academically and become a distraction to other children in his neighborhood school. I found no evidence that SPS provided, or even attempted to provide, the SBBS that A.Mu. needed to enable him to be successful at school. Consequently, A.Mu. was transferred to the Public Day School.
66. SPS policies do not clearly describe or require the provision of SBBS to children with mental health disabilities, including when necessary to avoid their removal from a
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neighborhood school. The absence of a clear policy related to SBBS is another indication of SPS's failure to provide appropriate supports to allow for the education of children with mental health disabilities in an integrated setting.
67. In my review, it became clear to me that class members are transferred there from neighborhood schools because the neighborhood schools do not employ SBBS that are recognized in the professional community as effective and preferable to segregation.
C. Defendants have a common practice of needlessly segregating S.S. and members of the class in the Public Day School where they receive inferior educational services. 1. Class members could be educated in their neighborhood schools if they received SBBS.
68. As described above, class members are placed in the Public Day School due to a lack of SBBS. Class members could be educated in their neighborhood schools if they were provided with those services.
69. Because they have not received these services while attending neighborhood schools, class members have behaved in ways that resulted in their placement at the Public Day School. These students could be successfully educated in SPS neighborhood schools if they were provided with SBBS.
70. None of the students whom I interviewed, nor any of those whose records I reviewed, had a history of behaviors or academic challenges that would preclude them from being educated successfully in neighborhood schools. In fact, none of these students stood out as having extraordinary challenges. All experienced behavioral and academic challenges similar to those faced by countless other students with whom I have worked and who have been educated successfully in neighborhood schools.
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71. The behaviors exhibited by students in the sample included things such as walking around, crawling on the ground, and making loud and distracting noises. These behaviors went unaddressed or were ineffectively addressed in neighborhood schools, resulting in students' removal from school. Those same behaviors have been successfully addressed in other communities with the provision of SBBS, without sending students to a segregated school.
72. The academic challenges experienced by students in the sample included things such as difficulty processing newly presented information, difficulty using context clues in reading, and distractibility. Students in the sample did not receive SBBS to address these challenges while they were in the neighborhood schools, resulting in their removal from school. Yet these challenges have been successfully addressed in other communities with the provision of school based behavior services, without sending students to a segregated school. For example, cognitive-behavioral interventions and intensive literacy support are SBBS techniques often used to support children with intensive academic needs. By addressing significant academic gaps in students' abilities, these approaches could enable students to experience success and remain in neighborhood schools.
73. Similarly, the students in the supplemental review could be educated in neighborhood schools if they received school based behavior services.
74. Based on my review and years of experience working with students with mental health disabilities, I conclude that the class could be successfully educated in SPS neighborhood schools if they received school based behavior services.
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2. Once in the Public Day School, class members receive an inferior education.
75. Class members receive inferior educational services that are not as effective in affording them equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as that provided to students without a mental health disability.
76. All of the parents, guardians, and students I interviewed reported the common experience of receiving inferior services and supports in the segregated SPS Day Schools. Parents repeatedly stated that the Public Day School campuses were punitive environments that exacerbated their children's mental health problems.
77. All parents and guardians I interviewed described events and practices that were punitive. They commented about services and/or curricular activities not available to their children. The practices they described are not consistent with professionally accepted standards for education and treatment of children with mental health disabilities.
78. The physical buildings or facilities used for the Public Day School campuses have been consistently described by the students and families in interviews as inferior buildings to the neighborhood schools. My own observations of the Public Day School High School were consistent with these descriptions of an old and inferior facility. SPS seems to recognize the inferior appearance of the buildings used for the Public Day School campuses in the fact that the publicly available district budget displays pictures that purport to be of the Public Day School campuses but are instead of newer, better buildings.
79. Students enrolled in SPS's Public Day School are suspended at disproportionately high rates. For example, the annual suspension data published by DESE revealed that in the 20142015 school year the overall rate of out-of-school suspension for all students in SPS was 8.7 % while the rate of suspension for students attending the high school campus of the Public Day
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School was 38.6 % and at the middle school campus was 36.8%. Consistent with this data, I found that the students whose files I reviewed and those I interviewed both in and outside the sample were suspended repeatedly while at the Public Day School.
80. The inferior education provided in the Public Day School is reflected in the shocking results for the Public Day School eighth graders who, on the 2015 MCAS "Science and Tech/Eng" test, were rated as 93% percent failing, 7% in need of improvement, and 0% percent proficient or advanced. (The state-wide averages for 8th graders on this test showed 18 % failing, 40 % in needs of improvement, and 42% proficient or advanced).
81. Very few of the students and families interviewed reported any extra-curricular activities at the Public Day School. Several students commented that occasionally there were intramural basketball games but that they were held infrequently. A review of extra-curricular activities available at neighborhood elementary, K-8, middle and high schools showed that a wide range of after-school activities were available in neighborhood schools. For example, at the elementary level, students had access to arts and crafts programs, boys and girls clubs, and cultural activities. Students at the middle and high schools had intramural soccer, volleyball, and basketball. They also had academic and career-focused clubs, academic support groups, and cultural and arts groups.
82. Only one student from my interviews reported participating in varsity sports.This student was enrolled at the Public Day School high school campus and just started in the swimming program after school at Central High School at the time he was interviewed. However in order to participate in team practices he has to leave the Public Day School early and miss some of his classes.
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3. The Public Day Schools Employ an Inappropriate Punitive Approach to Education.
83. Parents were asked how they would describe the Public Day Schools that their children attended. Ten of fourteen parents interviewed in January, 2016 compared the Public Day School environment to a 'jail" or "prison." One described the learning center at the Public Day School Middle School campus as a "dungeon." In my experience as a professional educator, I have never heard such consistently and vividly negative characterizations by parents of their children's school.
84. The Public Day School is not therapeutic and does not meet accepted professional standards. Instead, students in the Public Day School appear to be punished for behavior that is symptomatic of their emotional and behavioral disabilities.
85. S.S.'s academic experience in the Public Day School is typical of the class members I reviewed and was dramatically below that which would be considered minimally acceptable by professional standards. While at the Public Day School, S.S. was not offered a normal academic curriculum. S.S. would have had significantly greater academic achievement if educated in an integrated setting in an SPS neighborhood school, with appropriate SBBS.
86. S.S. had access to few extracurricular activities. While he is organized and interested in pursuits such as art and theater, S.S. essentially had no ability to engage in extracurricular activities at the Public Day School.
87. Further, S.S. did not receive adequate SBBS at the Public Day School. To the contrary, SPS engaged in a pattern of punishing S.S. for behavior that was a result of his disability. He was routinely subjected to physical restraints, including dangerous prone restraints, while he was at the Public Day School.
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88. While at the Public Day School, S.S. was also arrested for minor school based offenses related to his disability. This treatment was not warranted by any aspect of S.S.'s disability.
89. A.Mu. is 14 years old and was enrolled at the Public Day School from 2013 through June 2015. A.Mu. is a member of the group of students whose records I have included in my supplemental review.
90. At the Public Day School, SPS treated A.Mu. not as a child with a disability but as a child who is simply not trying hard enough. For example, a 2015 SPS school psychologist report states that teachers identify A.Mu. as showing "inconsistent effort" and states that the PDS special education teacher assigned to A.Mu. has written him off as evidencing "lack of motivation." His school records demonstrate that the adults responsible for A.Mu.'s education failed to understand that his behaviors are simply symptomatic of his mental health disability. The difficulties with A.Mu.' s education are not from lack of effort but rather from the lack of SBBS in SPS.
91. When he left the Public Day School, A.Mu. was reading at approximately the same second-grade level that he had attained before entering the Public Day School. This lack of progress is simply stunning for a child who, prior to his transfer to the Public Day School, was identified as well within the normal range for cognitive ability.
92. Inaddition, while he enjoys sports and plays basketball outside of school, A.Mu. had virtually no access to extracurricular activities that could have strengthened his focus and connection to the school environment.
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D. The unnecessary segregation of children with mental health disabilities in the Public Day School results in an inherently unequal education.
93. Children placed in the SPS Public Day School are deprived of equal educational opportunity by the very nature of their removal from an integrated setting and their peers.
94. Inshort, placing children in the SPS Public Day School contributes to the poor academic and social outcomes experienced by the class.
95. All but one of the parents I interviewed indicated that they wanted their children transferred from the Public Day School programs into integrated school settings with adequate SBBS. The one parent was ambivalent but had concerns about the services in the Public Day School. Her child expressed a strong preference for leaving the Public Day School.
96. Students segregated in the Public Day School are unnecessarily stigmatized and isolated.
97. Placing children in the Public Day School's segregated environment contributes to children's feelings of inadequacy and inferiority. It increases the likelihood that these children will continue to experience stigma and isolation as they age. Itrestricts their exposure to students without disabilities in a normal educational setting, and hence their ability to learn from and to interact with non-disabled peers.
98. Placing children with mental health disabilities together inthe Public Day School appears to have a negative effect on their behavior. It deprives them of the opportunity to benefit from peer role models and the normalizing experiences of childhood. The evidence I reviewedthe interviews, students' records, and SPS policies and documents-supports the conclusion that placement of children in the SPS Public Day School makes their mental health disabilities worse.
99. Segregating children at the Public Day School who could be educated in neighborhood schools is inappropriate. Segregated education is inherently unequal. I could use
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each child whose record I examined as an additional example of the inequality and inferiority of unnecessary segregation of children with mental health disabilities. VI. Conclusion
Based on my experience as a special educator and expert in the area of education and mental health services, I can state with confidence that S.S. and other members of the class could successfully be educated in an integrated setting in a neighborhood school if afforded SBBS. Based upon my review, I have concluded that:
• Children with mental health disabilities who are or have been placed at the Public Day School have a common set of experiences and S.S. is typical of this class of children.
• SPS denies children in the class equal educational opportunity and the opportunity to be educated in neighborhood schools by failing to provide the SBBS they need to learn, advance, and graduate from the neighborhood schools. Children in the class need these services to develop social and academic skills associated with graduation and transition to post-secondary education and employment.
• Children in the class receive an inferior education with fewer academic and extracurricular opportunities than those available in SPS's neighborhood schools.
• Segregating children in the Public Day School results in an inherently unequal education, restricts their exposure to children without disabilities, stigmatizes them, restricts their ability to learn from and how to interact with non-disabled peers, and worsens their educational and life outcomes.
23

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 25 of 84
Exhibit 1
Peter E. Leone CV not included here

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 26of 84
Exhibit 2

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 70 of 84

EXPERT REPORT OF PETER LEONE AS RELATED TO CLASS CERTIFICATION May 16, 2016

EXHIBIT 2

1. Non-Student Record Information

Document SPS Student-Parent Handbook SPS Strategic Plan 2013-2017 SPS Special Education Program Description 2012-2013 SPS School Staffing Allocation Plan SPS Pupil Progression Plan SPS Interim Administrative Procedure: Guidelines for Community Based Mental Health Agencies to Provide Mental Health Services at the School Site, Effective: June 3, 2010 SPS Enrollment and Exclusion of Students SPS Comprehensive School Counseling Program SPS Code of Conduct SPS Bullying Prevention and Intervention Plan, December 2, 2010 SPS Bullying Policy, May 23, 2010 Public Day Middle School SY 2012 School Report Card published by the Massachusetts Department of Elementary and Secondary Education ("DESE") Public Day High School SY 2012 School Report Card published by DESE Public Day Elementary School SY 2012 School Report Card published by DESE SPS Attendance Policy, Oct. 22, 2011 SPS Anti-Harassment Policy IEP analysis memo & spreadsheet 2012 SPS discipline data published by DESE
S.S. v. City of Springfield, Civ. Action No. 1430116-MGM, Complaint (Dkt No. 1) Civil Rights Complaint Against Springfield Public Schools, May 31, 2013

Bates No. Publically available document at SPS's website Publically available document at SPS's website Publically available document at SPS's website
Publically available document at SPS's website Publically available document at SPS's website Publically available document at SPS's website
Publically available document at SPS's website SPS-06643-006725
Publically available document at SPS's website Publically available document at SPS's website
Publically available document at SPS's website Publically available information on DESE's website.
Publically available information on DESE's website. Publically available information on DESE's website. Publically available document at SPS's website. Publically available document at SPS's website.
Publically available information on DESE's website.

1

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 71of 84

DESE Coordinated Program Review Report of Findings (April 2014) 2013 SPS discipline data published by DESE
2012-2013 Student discipline data report & link to 2013-2014 data published by DESE 2013-2014 discipline data published by DESE
2014-2015 Discipline Data for PDS & SPS and link to DESE website for additional research data Mat Room Log Processing Room Log Defendant's Response to Plaintiffs' First Set of Request for Admissions Springfield Operating Budget for Fiscal Year 15 Springfield Operating Budget for Fiscal Year 16 2014-2015 Discipline Data published by DEDE "After School Programs, Pre-Schools Programs, and Alternative Programs Within the Springfield Public Schools, Before/After School Programs Within the Community, Opportunities for Students Who Leave School Without a Diploma, and Day Care/Nursery School Providers" by Kimberly Galaska & Marie Santos and presented by Connie Mahoney, Springfield Public Schools as of January 2013 Exhibit A produced by Defendants in response to Plaintiffs' First Request for Production of Documents. Exhibit I produced by Defendants in response to Plaintiffs' First Request of Production for Documents. Exhibit K produced by Defendants in response to Plaintiffs' First Request for Production of Documents. Exhibit J produced by Defendants in response to Plaintiffs' First Request for Production of Documents. Exhibit O produced by Defendants in response to Plaintiffs' First Request for

Publically available information on DESE's website. Publically available information on DESE's website. Publically available information on DESE's website. Publically available information on DESE's website. Publically available information on DESE's website SPSMatRmOOO 1 -SPSMatRm0006 SPSProcessRmOOO 1 -SPSProcessRmOO 17
Publically available document available at SPS's website Publically available document at SPS's website Publically available information on DESE's website Publically available document available on internet
SPS06643-SPS06852, SPS06970-SPS07124 SPS01370-SPS01373
SPS01455-SPS01494
SPS01374-SPS01454
SPS-01546-01573

2

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 72of 84

Production of Documents Exhibit S produced by Defendants in response to Plaintiffs' First Request for Production of Documents. Exhibit U produced by Defendants in response to Plaintiffs' First Request for Production of Documents. Exhibit Y produced by Defendants in response to Plaintiffs' First Request for Production of Documents. Exhibit HH produced by Defendants in response to Plaintiffs' First Request for Production of Documents. Exhibit KK produced by Defendants in response to Plaintiffs' First Request for Production of Documents Exhibit 00 produced by Defendants in response to Plaintiffs' First Request for Production of Documents Exhibit PP produced by Defendants in response to Plaintiffs' First Request for Production of Documents Exhibit KKK produced by Defendants in response to Plaintiffs' First Request for Production of Documents Exhibit UUU produced by Defendants in response to Plaintiffs' First Request for Production of Documents Exhibit TTT produced by Defendants with Defendants' in response to Plaintiffs' First Request for Production of Documents Exhibit XXX produced by Defendants in response to Plaintiffs' First Request of Production for Documents Pleadings related to Motion for Class Certification in S.S. v. City of Springfield, Civ. Action No. 14-30116-MGM, (Dkt. Nos. 96, 97, 97-1, 97-2, and 98) Affidavit of Paul Foster and attached Exhibits (Dkt. Nos. 98-2, 98-3, & 98-4)

SPS03004-SPS3045
SPS03057-SPS03080
SPS06853-SPS0672
SPS03478-SPS03489
SPS07125-SPS07137
SPS05267-SPS05275
SPS05276-SPS05424
SPS07454-SPS07475
Excel Spreadsheet (native format)-produced by SPS without Bates Nos. Excel Spreadsheet (native format)-produced by SPS without Bates Nos. SPS07167-SPS07453

3

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 73of 84

2. Student Records for Students in Sample

Documents SPS Student Records for K.H. SPS Records for I.R. SPS Records for H.R.
SPS Records for K. L.
SPS Records for L.P. SPS Records for M.M. SPS Records for D.O.

Bates No.
Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSHROOO l SPSHR0218, SPSHR0219 SPSHR0224, SPSAdm-014076, SPSAdm-014085 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPS-Adm-004930, SPS-Adm-004932, SPS-Adm-004934, SPS-Adm-004947, SPS-Adm-004949, SPS-Adm-004951
Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS

4

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 74of 84

SPS Records for H.L.
SPS Records for A.B. SPS Records for N.S.

pursuant to a signed release. Other records and documents considered include: SPSD00593SPSD00594, SPSDOOOOO 1SPSD00592 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSHLOOO lSPSHL0707, SPSHL0708, SPS-Adm-011481-82, SPS-Adm-004979, SPS-Adm-004987004988, SPS-Adm-00498900493, SPS-Adm-004127004130 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSABOOOlSPSAB0602 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSNS0001SPSNS0994, SPSNS0842SPSNS0864 SPS-Adm-003728003729, SPS-Adm-003730-
5

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 75of 84

SPS Records for R.W. SPS Records for Y.R.
SPS Records for R.C. SPS Records for J.C. SPS Records for D.G.

003731 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSRWOOO lSPSRW0612, SPSRW0734SPSW0783 Records obtained by CPR from SPS pursuant to a signed release Other records and documents considered include: SPSYROOO lSPSYR0697, SPSYD0160SPSYD171, SPSYD0172SPSYD0173 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSRCOOO lSPSRC0842 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSJCOOO lSPSJC1416 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSDGOOOl-
6

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 76of 84

SPS Records for A.M.

SPSDG0018, SPS-Adm-009861 SPS-Adm-009862, SPS-Adm-009863009864 SPS-Adm-008992008994, SPS-Adm-009161, SPS-Adm-0058200584, SPS-Adm-0059300595, SPS-Adm-003735, SPS-Adm-003736, SPS-Adm-003737004027, SPS-Adm-004028004032, SPS-Adm-004033004034, SPS-Adm-004039, SPS-Adm-004040, SPS-Adm-004041, SPS-Adm-004042, SPS-Adm-004043, SPS-Adm-004044004045 SPS-Adm-004046, SPS-Adm-004047, SPS-Adm-004070004071, SPS-Adm-004090, SPS-Adm-004091, SPS-Adm-004092, SPS-Adm-004105, SPS-Adm-004304004306, SPS-Adm-004318004320 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSAMOOO l-
7

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 77of 84

SPS Records for J.T. SPS Records for T.W. SPS Records for A.T. SPS Records for R.Wr. SPS Records for S.H.

SPSAM0802, SPSAM0803SPSAM0805 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSJTOOOlSPSJT0828, SPSJT0829SPSJT0834 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSTWOOO lSPSTW0992, SPSTW0997SPSTW1010 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSATOOO lSPSAT0629 SPS-Adm-004476004477 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSRWOOO lSPSRW0742 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents
8

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 78of 84

SPS Records for D.S. SPS Records for J.B. SPS Records for A.C.S.

considered include: SPSSHOOO lSPSSH0096 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSDSOOOlSPSDS0796
Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered: SPSJB0001SPSJB0994, SPS-Adm-005341, SPS-Adm-005343, SPS-Adm-005345005346.
Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSASOOOlSPSAS0379

3. Student Records for Supplemental Review

Documents SPS Records for S.S.

Bates No.
Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSSSOOO lSPSSS0002.

9

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 79of 84

Complaint & Arrest report October 2014 SPS for S.S. Transcript for Administrative Hearing for in S.S. v. Springfield Public Schools, BSEA No. 1309716 All records, reports and documents produced by S.S. in discovery and as exhibits entered into evidence at the administrative hearing in S.S. v. Springfield Public Schools, BSEA No. 1309716 SPS Records for J.R.P.
SPS Records for J.Rz

Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSJPOOOl SPSJP0003 SPS-Adm-002041002043, SPS-Adm-002124, SPS-Adm-002126, SPS-Adm-002127, SPS-Adm-002135, SPS-Adm-002136, SPS-Adm-002138, SPS-Adm-002139, SPS-Adm-002140, SPS-Adm-002141, SPS-Adm-002142002143 SPS-Adm-009149 SPS-Adm-009150009151, SPS-Adm-009166009167, SPS-Adm-009169009170 Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include: SPSJROOO l -

10

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 80 of 84

SPS Records for N.D.
SPS Records for J. R. SPS Records for W. C, SPS Records for K.E. SPS Records for E.M. SPS Records for J.P. SPS Records for N.W. SPS Records for A.Mu. SPS Records for B.G. SPS Records for D. J.

SPSJR0143
Records obtained by CPR from SPS pursuant to a signed release. Other records and documents considered include an independent FBA and a revised independent FBA Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release.
11

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 81 of 84

SPS Records for Je. R.
SPS Records for S.C.
SPS Records for Ji. R.
130 of 510 Redacted IEPs produced by SPS in the administrative hearing in S.S. v. Springfield Public Schools, BSEA No. 1309716

Other records and documents considered include: SPS-Adm-004266 Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release. Records obtained by CPR from SPS pursuant to a signed release.

12

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 82 of 84
Disclosure

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 83 of 84
DISCLOSURE OF PETER E. LEONE As related to class certification in the matter of S.S. v. CITY OF SPRINGFIELD, Civ.
Action No. 14-30116-MGM
In compliance with Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, I state the following:
1. My report, dated as of May 16, 2016, contains a complete statement of all of the opinions I currently plan to express regarding class certification and the basis and reasons for those opinions, based on the documents and other information produced as of May 12, 2016.
2. My report describes the primary data and other information I considered in forming my opm1ons.
3. I do not anticipate using exhibits, other than evidence noted in my report, to summarize or support my opinions.
4. My curriculum vitae, attached as Exhibit 1to my report, sets forth my qualifications and lists all publications I have authored in the past ten years.
5. (a) Within the last four years, I have provided testimony in my capacity as an expert or otherwise in the following matters:
1. J. W v. Birmingham Bd. of Educ., United States District Court, Northern District of Alabama, Civ.Act. No. 2:10-cv-03314-AKK (Provided deposition testimony and trial testimony (February 2015) on behalf of plaintiffs); and
ii. In the Matter of the Reduction in Force of Certificated Employees of the Los Angeles County Office of Education, OAH No. 2016030341 (testified at administrative hearings on behalf of Los Angeles County Office of Education regarding staffing levels and qualifications for teachers at juvenile detention facilities in 2013, 2014, 2015, and 2016).
(b) Within the last four years, I have provided statements, and reports in court proceedings as shown below:
1. J. W v. Birmingham Bd. of Educ., Civ. Act. No. 2:10-cv-03314-AKK, United States District Court, Northern District of Alabama (Submitted declaration in support of plaintiffs);
11. Handberry v. Thompson, Civ. Act., 96-Civ.6161, United States District Court, Southern District of New York (Special Master 2014-15)(Issued a compliance report to the Court in 2015);
iii. R.J. v Jones (formerly R.J. v. Bishop), No. 1:12-cv-7289-MFK, United States District Court, Northern District of Illinois (Court-appointed Monitor and Expert) (Provided compliance reports to the Court for the period of 2012-2015); and
1

Case 3:14-cv-30116-MGM Document 158-1 Filed 07/15/16 Page 84 of 84 1v. Casey A. v. Delgado, Case No. CV-10-00192), United States District Court, Central
District California (Co-Chair, Technical, Compliance and Advisory Committee)(Issued quarterly reports from March 2011 through March 2012, biannually from March 2012 until May 2015, and in May 2016 to the parties but not to the Court pursuant to the terms of a consent decree). 6. My compensation in this litigation is $1000 per day ($125 per hour for an eight hour day) for record review and preparation of reports and statements, $1000 per day for depositions, and $1000 per day for testimony, plus expenses. Dated this 15th day of May 2016.
Peter E. Leone
2

 
 Case 3:14-cv-30116-MGM Document 33 Filed 07/28/14 Page 1 of 1

United States District Court District of Massachusetts

S.S., A MINOR, BY HIS MOTHER, S.Y., ON BEHALF OF HIMSELF AND OTHER SIMILARLY SITUATED STUDENTS, AND THE PARENT/PROFESSIONAL ADVOCACY
LEAGUE,
PLAINTIFFS v.

CITY OF SPRINGFIELD, MASSACHUSETTS, DOMENIC SARNO, IN HIS OFFICIAL CAPACITY AS MAYOR OF CITY OF SPRINGFIELD; SPRINGFIELD PUBLIC SCHOOLS; DANIEL J. WARWICK, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF SPRINGFIELD PUBLIC SCHOOLS,
DEFENDANTS.

CIVIL ACTION NO. 14-30116 MGM

MOTION TO DISMISS Now come the Defendants and respectfully move this honorable court to dismiss the

complaint pursuant to F. R. Civ. P., Rule 12(b)(6) on the grounds that it fails to state a claim

upon which the relief requested can be granted. In support of this motion, Defendants rely on the

attached memorandum of law submitted herewith.

REQUEST FOR ORAL ARGUMENT

Defendants respectfully request, pursuant to L.R.7.1(4)(d), that a hearing for oral

argument be scheduled in this matter.

Dated: July 28, 2014
CERTIFICATE OF SERVICE The undersigned hereby certifies that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF). I am not aware of any party who is a non-registered participant, and therefore electronic filing is the sole means of service of this document. SIGNED under the pains and penalties of perjury July 7, 2014. _____/s/ Edward M. Pikula_____________ Edward M. Pikula, Esquire

Respectfully submitted.

/S/ Edward M. Pikula

______________________________________

Edward M. Pikula, BBO #399770

City Solicitor

CITY OF SPRINGFIELD LAW DEPATMENT

36 Court Street – Room 210

Springfield, Massachusetts 01103

Telephone: (413) 787-6085

Telefax:

(413) 787-6173

 
 Case 3:14-cv-30116-MGM Document 40 Filed 08/27/14 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

S.S., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF SPRINGFIELD,

)

MASSACHUSETTS, et al.

)

)

Defendants.

)

____________________________________)

Civil Action No. 3:14-cv-30116-MGM

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA INTRODUCTION
Plaintiffs (S.S., by his mother, S.Y., on behalf of similarly situated students, and the Parent/Professional Advocacy League) allege that Defendants (including the City of Springfield and the Springfield Public Schools) have violated Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“Title II” or “the ADA”), by “consign[ing] hundreds of children with a mental health disability to the separate and inferior [Springfield] Public Day School.” (Complaint at 1.) Among other things, Plaintiffs allege that the Public Day School is comprised of physically segregated buildings where children with mental health disabilities are denied access to nearly all extracurricular activities that are available in neighborhood schools, including (but not limited to) afterschool sports, clubs, and activities; are subjected to harmful forced isolation and dangerous physical restraints that risk serious injury or death; and are regularly subjected to unduly punitive responses to even minor infractions of school rules and routine disciplinary matters, including arrest by armed, uniformed Springfield Police Officers.
1

Case 3:14-cv-30116-MGM Document 40 Filed 08/27/14 Page 2 of 17
(Complaint at 14-15.) Defendants have moved to dismiss the Complaint, arguing, inter alia, that Plaintiffs were required to bring a claim under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., in lieu of or alongside their ADA claim in this federal action in order to satisfy administrative exhaustion requirements, and that the Title II implementing regulations that support Plaintiffs’ ADA count are not enforceable via a private right of action.
Defendants are wrong on both points. The United States respectfully submits this Statement of Interest to clarify the proper interpretation of the ADA as to these issues.1 First, Title II of the ADA includes no administrative prerequisites for filing suit in federal court, and while the ADA and IDEA provide complementary protections for many students with disabilities, they are not identical in purpose or scope and impose distinct obligations on school districts in furtherance of their respective statutory mandates. Therefore, presuming fulfillment of any administrative exhaustion requirements under IDEA, a plaintiff whose facts implicate both IDEA and the ADA may opt to proceed in federal court under both statutes. Or, as here, that plaintiff may choose to pursue a complaint only under the ADA, which may require different or additional measures to avoid discrimination against children with disabilities than the measures that are required to comply with IDEA. Second, the Title II regulations implicated by the Complaint directly execute the ADA’s nondiscrimination mandate. These regulations have been construed and given deference by federal courts for over two decades as appropriately implementing Title II, and clearly give rise to a private right of action.
I. INTEREST OF THE UNITED STATES Under 28 U.S.C. § 517, the Attorney General may send any officer of the Department of Justice “to attend to the interests of the United States in a suit pending in a court of the United
1 The Department takes no position on any other issues currently before the Court. 2

Case 3:14-cv-30116-MGM Document 40 Filed 08/27/14 Page 3 of 17
States . . . .” The Attorney General has an interest in supporting the ADA’s proper interpretation and application; furthering the statute’s explicit congressional intent to provide clear, strong, consistent, and enforceable standards addressing discrimination against individuals with disabilities; and ensuring that the Federal government plays a central role in enforcing the standards established in the ADA. See 42 U.S.C. § 12101(b). Accordingly, the United States respectfully requests that the Court consider the interpretation and application of Title II, as set forth in this Statement of Interest, in resolving Defendants’ Motion to Dismiss.
II. DISCUSSION A. Where Both IDEA and the ADA Are Implicated, a Plaintiff May Pursue an ADA
Claim Exclusively Once the Plaintiff Has Fulfilled IDEA’s Administrative Exhaustion Requirements. In support of the Motion to Dismiss, Defendants argue that Plaintiffs cannot bring their ADA claim before this Court because they failed to exhaust administrative procedures required under the IDEA. More specifically, Defendants appear to argue that Plaintiffs’ failure to bring an IDEA claim in Federal court, in lieu of or in addition to the ADA claim, constitutes a failure to exhaust and that therefore Plaintiffs’ ADA claim must be dismissed. The ADA, itself, does not have administrative exhaustion requirements. To the extent that the ADA and IDEA are simultaneously implicated, IDEA’s administrative procedures are specifically addressed in the IDEA statute, which provides a rule of construction for matters that involve other sources of law. Specifically, 20 U.S.C. § 1415(l) states: Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsection (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
3

Case 3:14-cv-30116-MGM Document 40 Filed 08/27/14 Page 4 of 17
Subsections (f) and (g) of 20 U.S.C. § 1415, in turn, set out the procedures for the impartial due process hearing conducted by the State educational agency or by the local educational agency, and (where applicable) procedures for appeal of the decision of the local educational agency to the State educational agency. IDEA includes no other restrictions on the right of an individual to assert an ADA claim in federal court.2
In this Statement of Interest, the United States takes no position on whether or not the facts of this case demonstrate that administrative exhaustion under IDEA occurred.3 Assuming, however, that IDEA exhaustion has occurred, there is simply no basis for Defendants’ contention that an IDEA claim that could be litigated once the matter has been elevated to Federal court must be litigated. Nothing subsequently bars a litigant from bringing an ADA claim available to it in a United States District Court while leaving aside distinct and independent claims grounded in similar – or even identical – underlying facts and circumstances.
Moreover, while the First Circuit has frowned on attempts to circumvent IDEA requirements or to gain access to damages not available under IDEA by re-characterizing IDEA claims as ones under other statutes, it has also made clear, relying on the IDEA language of 20
2 Notably, 20 U.S.C. § 1415(l) does not incorporate or require compliance with 20 U.S.C. § 1415(i), which establishes the right to bring a civil action under IDEA in state or federal court and sets forth procedures related thereto. 3 While taking no position on its ultimate validity, we note that Defendants’ exhaustion argument appears muddled. Defendants assert that “the I.D.E.A. claim is not appealed. As such, there has not been exhaustion as required.” (Motion at 16.) But this statement directly contradicts other, seemingly dispositive assertions in Defendants’ Motion, such as that “Plaintiffs have followed the appeal procedures applicable to S.S.’s [Individualized Education Program] through the [Bureau of Special Education Appeals] concerning the appropriateness of his placement under the regulations referenced in those criteria.” (Motion at 13 (emphasis added).) Further, Defendants note that Plaintiffs invoked the ADA during the administrative process, but the Bureau of Special Education Appeals (“B.S.E.A.”) hearing officer “ruled that the B.S.E.A. does not have jurisdiction under the A.D.A.” (Motion at 14.)
4

Case 3:14-cv-30116-MGM Document 40 Filed 08/27/14 Page 5 of 17
U.S.C. § 1415(l), that IDEA does not restrict rights and remedies that are independently available through other sources of law. See Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (1st Cir. 2006). A plaintiff’s right to pursue an ADA claim independently of an IDEA claim is consistent with the fact that these two statutes differ in numerous regards, including in purpose, scope, and rights afforded.
1. IDEA Ensures a Free Appropriate Public Education. IDEA is a special education statute intended to ensure that eligible children with disabilities have available 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); see 20 U.S.C. § 1401(3)(a); School Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 367 (1985). A central element of IDEA, and the means to provide a free appropriate public education (FAPE), is the development and implementation of an Individualized Education Program (IEP) for each eligible child with a disability. 20 U.S.C. § 1414(d)(1)(A). The IEP must identify, inter alia, the special education and related services that will address that child’s unique needs, including the child’s education and participation with children who do not have disabilities in the general education curriculum and in extracurricular and other nonacademic activities; the child’s present levels of academic achievement and functional performance; measurable annual goals; descriptions of progress measures and periodic reporting; and the child’s participation in regular or alternate State and districtwide assessments. 20 U.S.C. 1414(d)(1)(A)(i). A FAPE under IDEA must provide the student a “meaningful” educational benefit. See Dracut Sch. Comm. v. Mass. Bureau of Special Educ. Appeals, 737 F. Supp. 2d 35, 50 (D. Mass. 2010) (citing N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1210 (9th Cir. 2008)). IDEA does not set out a substantive standard prescribing the level of education to be accorded to
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eligible children. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 189 (1982). It does, however, require that an IEP developed for an eligible student is “reasonably calculated to enable the child to receive educational benefits.” Id. at 206-07. To establish a violation of IDEA as it relates to a student’s educational program, a plaintiff can show that the IEP will not provide the student with a FAPE, or that procedural violations resulted in denial of a FAPE. See Hellgate, 541 F.3d at 1208.
2. Title II of the ADA Prohibits Discrimination Against Students with Disabilities. The ADA is a comprehensive civil rights and equal opportunity statute. The Congressional findings contained in the ADA state that “discrimination against individuals with disabilities persists in such critical areas as . . . education. . . .” 42 U.S.C. § 12101(a)(3). The broad remedial purposes of the ADA include “provid[ing] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The ADA requires 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.” 42 U.S.C. § 12132. Under Title II of the ADA, a plaintiff must show that (1) he or she is a qualified individual with a disability; (2) he or she was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability. Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000) (vacating judgment in favor of defendants because the evidence was sufficient to establish a prima facie ADA case). In addition to “outright intentional exclusion,” the ADA also protects
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against additional forms of discrimination, including the discriminatory effects of architectural and communication barriers, failure to make modifications to existing facilities and practices, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities. 42 U.S.C. § 12101(a)(5); see also, e.g., Olmstead v. L.C., 527 U.S. 581, 597 (1999); Rolland v. Cellucci, 52 F. Supp. 2d 231, 238 (D. Mass. 1999) (“[A]n exclusion from services may be actionable whether or not the public entity intended to discriminate. Otherwise, [the ADA’s nondiscrimination mandate at 42 U.S.C. § 12132] would be rendered meaningless.”); Helen L. v. DiDario, 46 F.3d 325, 335 (3d Cir. 1995) (“[W]e will not eviscerate the ADA by conditioning its protections upon a finding of intentional or overt ‘discrimination.’”). Finally, contrary to Defendants’ assertion in their Motion at page 13, a plaintiff is not required, as an element of an ADA claim, to demonstrate a denial of FAPE.
3. A School District Can Provide FAPE Under IDEA and Still Violate the ADA. The ADA’s broad, non-discrimination mandate may require school districts to take different or additional steps to prevent discrimination against students with disabilities than the measures required by IDEA. The Ninth Circuit recently addressed the interplay of these two statutes in a case involving the question of whether school districts’ compliance with their obligations to deaf or hard-of-hearing children under IDEA also necessarily establishes compliance with their obligations to those children under the ADA. K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013); see also Brief of the United States as Amicus Curiae Supporting Appellant and Urging Remand in K.M. v. Tustin Unified Sch. Dist., No. 11-56259, in the United States Court of Appeals for the Ninth Circuit, filed Jan. 24, 2012, available at http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf (last visited August 14, 2014). The district court had granted summary judgment for the defendants, finding that because the school
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districts at issue had fully complied with IDEA, they had satisfied the requirements of the ADA.
725 F. 3d at 1092. The Ninth Circuit found otherwise: “We do not find in either statute an
indication that Congress intended the statutes to interact in a mechanical fashion in the schools
context, automatically pretermitting any Title II claim where a school’s IDEA obligation is
satisfied.” Id. The Tustin Court recognized that “IDEA and Title II differ in both ends and
means,” noting that IDEA set the “floor of access to education” to the children in that case,
whereas Title II and its implementing regulations “require public entities to take steps towards
making existing services not just accessible, but equally accessible to people with
communication disabilities.” 725 F. 3d at 1092 (original emphasis); see also Rowley, 458 U.S. at
198, 201 (recognizing a “basic floor of opportunity” provided by IDEA and noting that IDEA’s
requirement to provide specialized education services does not equate to providing “equality of
opportunity or services.”). Tustin thus recognizes that the ADA is not merely repetitive of
IDEA’s protections. As explained in Tustin, the ADA’s broad promise of equal opportunity may
require school districts to take different or additional measures to avoid discrimination against children with disabilities than the measures that are required under IDEA.4
Against this framework, a plaintiff’s decision, as here, to seek relief under the ADA but
not IDEA in a Federal court is plainly his or her choice. As in Tustin, Plaintiffs here are not
4 The United States notes Defendants’ reliance on I.M. v. Northampton Public Schools, 869 F. Supp. 2d 174, 186 (D. Mass. 2012), for the proposition that plaintiffs “cannot disguise an IDEA claim in other garb where the essence of the claim is one stated under the IDEA for denial of FAPE” (internal quotation marks and citations omitted). I.M. raised similar IDEA/ADA interplay issues as those raised in Tustin, but the I.M. Court reached the opposite conclusion. Id. at 188 (holding that the plaintiffs’ ADA claim necessarily fails, “the court having concluded, as had the hearing officer, that I.M. had not been denied a FAPE”). The I.M. decision does not reflect the Department of Justice’s interpretation of the relationship between IDEA and the ADA, as explained in this Statement of Interest. See also Brief of the United States as Amicus Curiae Supporting Appellant and Urging Remand in K.M. v. Tustin Unified Sch. Dist., No. 11-56259, in the United States Court of Appeals for the Ninth Circuit, filed Jan. 24, 2012, available at http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf (last visited August 14, 2014).
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pursuing a denial of FAPE claim. Rather, the theory of the case is that Defendants have violated the equal opportunity principles fundamental to the ADA. Namely, Plaintiffs allege that the affected students were denied “an opportunity to participate in or benefit from educational services that is equal to that afforded other students,” both in the classroom and outside of it, for instance through exclusion from extracurricular activities available to other students; were further denied “educational services that are as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided other students;” and were also denied “the opportunity to receive educational programs and services in the most integrated setting appropriate to their needs.” (Complaint at 19-20.) The Defendants’ IDEA FAPE obligations, even if satisfied, do not foreclose the ADA claims in this case.
Indeed, even if Defendants were correct that Plaintiffs were required to bring an IDEA claim in federal court at this time (which, as discussed above, they are not), their argument would not eliminate Plaintiffs’ independent ADA claim, but would just require Plaintiffs to add an IDEA claim to this case. Each cause of action would still be independent and would have to be analyzed under the respective statutory scheme and standards. Adding an IDEA claim would not undermine or subsume the independent ADA claim, or limit the ADA claim to the IDEA requirements or remedies. See, e.g., K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1097 (9th Cir. 2013) (“Congress has specifically and clearly provided that the IDEA coexists with the ADA and other federal statutes, rather than swallowing the others.”).
In sum, Plaintiffs’ allegations cannot be dismissed as “disguised” IDEA claims. Rather, Plaintiffs have opted to forego IDEA’s special education-related protections and to instead
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invoke the ADA’s nondiscrimination and equal opportunity promises. The decision to choose among the available bases for relief is, quite simply, Plaintiffs’ prerogative.
B. The ADA Implementing Regulations at Issue in Plaintiffs’ Complaint Effectuate the Nondiscrimination Mandate of the ADA and Support a Private Right of Action. In their Motion, Defendants argue that the allegations of the Complaint “do not provide a
sufficient basis for establishing a private right of action.” (Motion at 11.) They are mistaken. The ADA regulations implicated by the Complaint are intimately linked to the ADA statutory language and directly and faithfully execute the ADA’s nondiscrimination mandate. Consequently, the ADA regulations can be enforced through the private right of action established under the ADA.
Title II of the ADA broadly prohibits disability-based discrimination by state and local governments, providing that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. It provides a private right of action to enforce its requirements, by conferring upon any person alleging a violation of Title II the “remedies, procedures, and rights” of the Rehabilitation Act of 1973 (“Rehabilitation Act”) which, in turn, incorporates the rights and remedies of Title VI of the Civil Rights Act. 42 U.S.C. § 12133; 29 U.S.C. § 794a(a)(2).
Congress directed the Department of Justice to promulgate regulations implementing Title II’s prohibition against discrimination The regulations set forth in 28 C.F.R. § 35.130 do just that. As explained in the Department of Justice’s Guidance on ADA Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services (“Title II Guidance”), Paragraph (a) of 28 C.F.R. § 35.130 “restates the nondiscrimination mandate of [Title II] of the ADA. The remaining paragraphs in § 35.130 establish the general principles for
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analyzing whether any particular action of the public entity violates this mandate.” 28 C.F.R. pt. 35, app. B, at 193. These provisions of 28 C.F.R. § 35.130 fall squarely within the scope of the ADA and are merely an interpretation of the statute.5
Indeed, Congress directed the Attorney General to promulgate such regulations, consistent with the ADA and with pre-existing regulations implementing Section 504 of the Rehabilitation Act. 42 U.S.C. § 12134. The ADA regulations implicated by the Complaint and contained in 28 C.F.R. § 35.130 are the same as the implementing regulations Congress was referencing under Section 504. By its express reference to the Section 504 regulations, Congress similarly intended that discrimination prohibited under Title II encompass the forms of discrimination set forth in 28 C.F.R. § 35.130.
The regulations referenced in the complaint are among the regulations promulgated to implement Title II’s prohibition against discrimination, including 28 C.F.R. §§ 35.130(b)(1)(ii) & (iii), which provide that a public entity, in providing any aid, benefit, or service, may not on the basis of disability “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others” or “provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others” (Complaint at 19, Para. 83(a) & (b)); and 28 C.F.R. § 35.130(d), which requires public entities to provide services in the most 5 As the agency charged by Congress with enforcing and implementing regulations under the ADA, the Department of Justice’s interpretation of Title II and its regulations is entitled to substantial deference. See, e.g., City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1868 (2013) (holding that Chevron deference applies where the agency’s interpretation of a statute is based on a permissible construction of that statute); Olmstead v. L.C., 527 U.S. 581, 598 (1999) (“The well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”) (internal quotation marks omitted).
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integrated setting appropriate to the needs of individuals with disabilities (Complaint at 20, Para. 83(c)). The Complaint also implicates 28 C.F.R. § 35.130(b)(7), requiring that public entities “make reasonable modifications in policies, practices, or procedures when the modifications are 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” (Complaint at 20, Para. 83(d)); and 28 C.F.R. § 35.130(b)(3)(ii), which prohibits public entities from “utilizing methods of administration that have the effect of defeating or substantially impairing the objectives of the public entity's program with respect to individuals with disabilities” (Complaint at 20, Para. 83(e)).
Each of these regulations fall within the ambit of and provide an authoritative interpretation of the ADA, and consequently violations of these provisions are as enforceable via a private right of action as the underlying statute itself. In Alexander v. Sandoval, 532 U.S. 275, 284 (2001), the Supreme Court made clear that where a statute contains a private right of action to enforce its requirements, regulations validly and reasonably interpreting those requirements also give rise to a private right of action. Id. at 284. Indeed, because such regulations “authoritatively construe the statute itself,” it is “meaningless to talk about a separate cause of action to enforce the regulations apart from the statute.” Id. In such a scenario, there is no need for an independent analysis of the regulations’ enforceability, because “[a] Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well.” Id.
Furthermore, courts have also long construed these regulations as an authoritative interpretation of the ADA. See, e.g., Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 538-39 (E.D. Pa. 2001) (finding a private right of action to enforce both the “most integrated
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setting” provision of 28 C.F.R. § 35.130(d) and the “methods of administration” regulation at 28 C.F.R. § 35.130(b)(3)(i)); Brantley v. Maxwell-Jolly, 656 F.Supp.2d 1161, 1175-76 (N.D. Cal. Sep 10, 2009) (holding that a private right of action exists to enforce the “methods of administration” regulations at 28 C.F.R. § 35.130(b)(3)(i) and (ii), and compiling further case law similarly holding); Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir. 1995) (noting that 28 C.F.R. § 35.130(d) “has the force of law.”).6
Defendants’ reliance on the First Circuit’s decision in Iverson v. City of Boston, 452 F.3d 94 (1st Cir. 2006), to question the existence of a private right of action to enforce the Title II regulations at 28 C.F.R. § 35.130 is misplaced. (See Motion at 11-13.) The Iverson plantiffs claimed violations of two discrete and specific Title II regulations: the so-called self-evaluation regulation at 28 C.F.R. § 35.105, which directed all public entities, by April 5, 1994, to evaluate their current services, policies, and practices, and the effects thereof, for compliance with Title II; and the transition plan regulation at 28 C.F.R. § 35.150(d), which, among other things, required qualifying public entities to develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete structural changes to existing facilities to accomplish program accessibility. See id. at 96, 99-100. The Iverson Court held that the self-
6 Courts have also found other Title II regulations, not at issue here, to give rise to a private right of action. See, e.g., Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 913 (6th Cir. 2004) (finding a private right of action to enforce 28 C.F.R. § 35.151, which requires that facilities constructed for the use of public entities be designed and constructed so that they are readily accessible to and usable by individuals with disabilities, if construction was commenced after January 26, 1992); Nat’l Org. on Disability v. Tartaglione, Civil Action No. 01-1923, 2001 U.S. Dist. LEXIS 16731, at *16-22 (E.D. Pa. Oct. 11, 2001) (finding a private right of action to enforce 28 C.F.R. § 35.151); Access Living v. Chicago Transit Auth., 2001 U.S. Dist. LEXIS 6041, No. 00 C 0070 (N.D. Ill. May 9, 2001) (“the [Title II] regulations relied on by plaintiffs do not . . . expand the meaning of discrimination. Rather, the regulations at issue here simply clarify the definition of discrimination (what accommodations are reasonable), and therefore are not an invalid basis under which to bring suit. . . .”).
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evaluation and transition plan regulations “may not be enforced through the instrumentality of the private right of action available under Title II.” Id. at 102. But see Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857-60 (10th Cir. 2003) (holding that the self-evaluation and transition plan regulations are enforceable via a private right of action).
The Court’s holding is grounded in the reasoning that the self-evaluation and transition plan regulations facilitate ADA compliance, but that a public entity may fail to comply with either regulation and still be in complete harmony with Title II requirements. The Court reasoned that a violation of the self-evaluation or transition plan regulations, in and of themselves, does not constitute discrimination against or cause harm to individuals with disabilities in violation of Title II. In contrast, the regulations at 28 C.F.R. § 35.130, as explained above, establish principles for analyzing whether any particular action of the public entity violates Title II’s nondiscrimination mandate. 28 C.F.R. pt. 35, app. B, at 193; Iverson, 452 F.3d at 100-01 (referencing Sandoval to note that “a regulation that simply effectuates an express mandate contained in the organic statute may nonetheless be enforceable through the private right of action contained in the statute itself.”). In other words, noncompliance with any of the regulations at 28 C.F.R. § 35.130 is itself a violation of Title II.
Where, as here, Plaintiffs’ Complaint alleges facts that, if taken as true, violate regulations that directly derive from and reasonably implement the nondiscrimination provisions of Title II, a claimed violation of any one of these regulations is one and the same as a violation of Title II. See Sandoval, 532 U.S. at 284. And each is as enforceable via a private right of action as the statutory language itself.
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Case 3:14-cv-30116-MGM Document 40 Filed 08/27/14 Page 15 of 17 CONCLUSION
Based on the allegations in the Complaint, Plaintiffs challenge practices and invoke rights under the Americans with Disabilities Act. Presuming satisfaction of applicable administrative exhaustion requirements under IDEA, it is within Plaintiffs’ purview solely to invoke the rights guaranteed by the ADA, to the exclusion of other statutes also implicated by the allegations. Further, a private right of action flows from the ADA implementing regulations at 28 C.F.R. § 35.130, as they validly and reasonably effectuate Title II’s nondiscrimination mandate.
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Respectfully submitted this 27th day of August, 2014.

ERIC H. HOLDER, JR. Attorney General of the United States

CARMEN M. ORTIZ United States Attorney District of Massachusetts

MOLLY J. MORAN Acting Assistant Attorney General Civil Rights Division

/s/ Jennifer A. Serafyn JENNIFER A. SERAFYN Assistant United States Attorney District of Massachusetts John Joseph Moakley Federal Courthouse One Courthouse Way, Suite 9200 Boston, MA 02210 Telephone: (617) 748-3188 jennifer.serafyn@usdoj.gov

EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
REBECCA B. BOND Chief, Disability Rights Section ANURIMA BHARGAVA Chief, Educational Opportunities Section
ANNE RAISH Deputy Chief, Disability Rights Section RENEE WOHLENHAUS Deputy Chief, Educational Opportunities Section

/s/ Anne E. Langford ANNE E. LANGFORD Trial Attorney Disability Rights Section JOSEPH J. WARDENSKI Trial Attorney Educational Opportunities Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, N.W. (NYA) Washington, D.C. 20530 Telephone: (202) 616-2727 anne.langford@usdoj.gov

Counsel for the United States of America

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CERTIFICATE OF SERVICE
I hereby certify that this Statement of Interest of the United States of America, filed through the CM/ECF system on this 27th day of August, 2014, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF). I am not aware of any nonregistered participants, so electronic filing is the sole means of service of this document.
/s/ Anne E. Langford ANNE E. LANGFORD Trial Attorney Disability Rights Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, N.W. (NYA) Washington, D.C. 20530 Telephone: (202) 616-2727 anne.langford@usdoj.gov
Counsel for the United States of America

 
 UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

S.S., a minor, by his mother, S.Y., on behalf of

*

himself and other similarly situated students; the *

PARENT/PROFESSIONAL ADVOCACY

*

LEAGUE; and the DISABILITY LAW CENTER, *

*

Plaintiffs,

*

*

v.

*

*

CITY OF SPRINGFIELD, MASSACHUSETTS; *

DOMENIC SARNO, in his official capacity as

*

Mayor of City of Springfield; SPRINGFIELD

*

PUBLIC SCHOOLS; DANIEL J. WARWICK, in *

his official capacity as Superintendent of Springfield *

Public Schools,

*

*

Defendants.

*

Civil Action No. 14-30116-MGM

MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DEFENDANTS’ MOTIONS TO EXCLUDE OR LIMIT AND FOR EVIDENTIARY HEARING
(Dkt. Nos. 96, 162, and 171) December 16, 2016

MASTROIANNI, U.S.D.J.

I.

INTRODUCTION

Plaintiffs bring this proposed class action on behalf of all students who have been diagnosed with mental health disabilities and enrolled not in a neighborhood school but in one of several schools operated by Defendant, Springfield Public Schools (“SPS”), and collectively referred to in this litigation as the Springfield Public Day School (“SPDS”). “Neighborhood school” is a term used in this litigation to refer to elementary and middle schools which primarily enroll students based on

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their residential address and high schools which enroll students through the High School Choice Plan. Each student enrolled at the SPDS has been formally diagnosed with a mental health disability. Plaintiffs assert students attending the SPDS are not only segregated from nondisabled students, but also receive educational services that are demonstrably inferior to those offered at neighborhood schools, are unable to access extracurricular activities available at neighborhood schools, and are subjected to dangerously punitive discipline.
Plaintiffs’ allegations paint a picture of the SPDS which is both troubling and vigorously disputed by Defendants. Despite the concerning allegations, Plaintiffs have not brought claims arising directly from the operation of the SPDS, including claims Defendants failed to provide students who attended SPDS with educational services that met the requirements of the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. Instead, Plaintiffs contend Defendants violated Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, et seq., by adopting a policy and practice of not providing students with mental health disabilities with necessary services in neighborhood schools. As a result of that policy or practice, a portion of students with mental health disabilities have been segregated at the SPDS, rather than attending neighborhood schools where they could have access to educational services that is equal to that enjoyed by non-disabled students.
Specifically, Plaintiffs assert Defendants enrolled members of the proposed class at the SPDS rather than offer services in those neighborhood schools that would enable members of the proposed class to be educated in neighborhood schools. Central to Plaintiffs claims are their contentions, supported by the opinions of Dr. Peter Leone, Plaintiffs’ proffered expert, that Defendants have violated the ADA by failing to offer “school-based behavior services” or “SBBS” in its neighborhood schools and that all members of the proposed class would be able to attend
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neighborhood schools if SBBS were offered. Plaintiffs thus seek an order compelling Defendants to provide SBBS in its neighborhood schools.
On November 19, 2015, this court denied Defendants’ motions to dismiss. (Dkt. No. 102.) Prior to the court’s ruling, Plaintiffs filed their Motion for Class Certification (Dkt. No. 96). Following a period of discovery, the parties filed supplemental briefing on the Motion for Class Certification in July and August of 2016. Defendants subsequently filed a Motion to Exclude or Limit the Testimony of Peter Leone, Plaintiffs’ proffered expert (Dkt. No. 162), and a separate Motion for an Evidentiary Hearing (Dkt. No. 171), which Plaintiffs have opposed. For the reasons discussed below, Plaintiffs’ motion will be denied and Defendants’ motions will be found moot.
II. FACTUAL BACKGROUND In this section, the court briefly summarizes the factual background relevant to this decision. This includes an overview of the way SPS provides services to members of the proposed class; a description of SBBS, as that term is used both to describe Defendants’ alleged shortcomings and Plaintiffs’ proposed remedy; and brief portraits of the individual members of the proposed class who have been identified by the parties. The court does not recite the concerning, and contested, allegations Plaintiffs make regarding the operation of the SPDS because such facts are relevant only to establish that students attending the SPDS do not have access to educational services equal to their counterparts who attend neighborhood schools, an issue that is not relevant to Plaintiffs’ Motion for Class Certification.
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A. Overview of SPS Services for Students with Mental Health Disabilities During the 2015-16 school year, SPS enrolled 25,479 students who attended academic
programs in sixty different buildings. (Dkt. No. 166, Supp. Mem. in Opp. to Class Cert. 3.) The majority of these students attend a neighborhood school. Approximately 5,000, or 20% of all SPS students, were students with disabilities. (Dkt. No. 97, Mem. in Support of Mot. for Class Cert. 2.) Dkt. No. 166 at 3.) In 2014, between 600 and 700 students were classified by SPS as having a mental health disability that interferes with their education. (Dkt. No. 97 at 2.) Approximately one-third of these students, or about 1% of SPS students, were enrolled at the three separate schools which comprise the SPDS. (Id.) As of May 1, 2016, 86 students were enrolled at the elementary school, 61 at the middle school, and 99 at the high school. (Dkt. No. 166-5, Aff. of Rhonda Jacobs 1.) Only students diagnosed with a mental health disability attend the SPDS. Each student placed at the SPDS receives services pursuant to an Individual Education Program (“IEP”).
The majority of SPS students with mental health disabilities are not enrolled at the SPDS. (Dkt. No. 166 at 5.) Some portion of these students attend neighborhood schools and are enrolled in a Social Behavioral Support (“SEBS”) program. The SEBS program provides an increased level of academic support to students who “exhibit significant and pervasive emotional and behavioral disabilities which affect overall psychological and academic functioning over a long period of time.” (Dkt. No. 166 at 4.) For elementary and middle school students, the SEBS program is delivered using separate, “pull-out” classrooms. (Id.) High school students are provided with “behavioral and therapeutic supports throughout the day.” (Id.) The SEBS program is offered in most, but not all, neighborhood schools. (Id.)
SPS has also adopted a Positive Behavioral Interventions and Supports (“PBIS”) program, though the program has not yet been implemented at all schools. The PBIS program is intended to provide “proactive systems for improving student academic and behavioral outcomes for all
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students.” (Id.)The PBIS program is not one particular intervention, but rather is a “framework that guides selection, integration, and implementation of the best evidence-based academic and behavioral practices for improving important academic and behavior outcomes for all students.” (Id.)
Plaintiffs allege SPS has not adequately implemented the programs they do offer. Plaintiffs have submitted email correspondence between various SPS employees who provide or coordinate special education evaluations and services to students. Among the issues documented in these emails are instances in which staff at a particular school failed to act in a manner consistent with SPS policies (Dkt. 159-3, 159-5, 159-6); staff at a particular school sought to have difficult students placed at the SPDS without properly documenting the need for such a placement (Dkt. 159-4, Dkt. 159-15); incomplete records may have prevented a student from receiving services (Dkt. 159-7); and students received inadequate behavior intervention plans (“BIPs”) or their BIPs were inadequately implemented (159-14, 159-16). Many, if not all, of the issues raised by the emails arose in the context of activities related to SPS’s compliance with its obligations under the IDEA. Plaintiffs assert the lapses documented in these emails also support their position that policies or practices existed within SPS which violated the ADA.
B. SBBS In addition to alleging SPS has not adequately implemented the programs they offer,
Plaintiffs assert those programs are inadequate to provide equal access to educational services to students with mental health disabilities. As defined by Plaintiffs, SBBS does not consist of a particular intervention or protocol. Instead, Plaintiffs define SBBS as a combination of four separate services: “(a) comprehensive assessment, including determination of the purpose and triggers for the child’s behavior; (b) a school-based intervention plan that relies on positive support, social skills
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building, a care coordinator, and adjustments as needed to the curriculum or schedule; (c) training for school staff and parents in implementing the plan; and (d) coordination with non-school providers involved with the child.” Plaintiffs assert, and their proffered expert, Peter Leone, Ph.D., has opined, that all members of the proposed class could be educated in neighborhood schools if Defendants provide SBBS. Dr. Leone has also opined that members of the proposed class require SBBS and that there exists “a professional consensus” that students like those in the proposed class require SBBS in order to be educated in neighborhood schools and to have equal access to educational services. Though Plaintiffs and Dr. Leone discuss SBBS as though the term refers to a single program that has been formally studied and found effective for students like those in the proposed class, Plaintiffs conceded, at the hearing, that the term SBBS was created for this litigation. Though invited to do so by the court, Plaintiffs have not provided the court with any peer-reviewed studies establishing the effectiveness of programs similar to SBBS.
C. Members of the Proposed Class Plaintiffs seek certification of a class comprised of all students who have been diagnosed
with mental health disabilities and enrolled at the SPDS, rather than a neighborhood school. They have named one plaintiff, S.S. who is a member of this class. In addition, they have submitted declarations from the parents of D.S., J.R., J.C., and L.P., each of whom is a member of the proposed class. Dr. Leone provided brief descriptions of four other members of the proposed class: A.Mu., K.L., K.H., and W.C. Defendants have supplemented the information about some of these proposed class members and have provided declarations from the parents of L.C., J.M., and Z.A., three other members of the proposed class. The court briefly summarizes the information it has received regarding each of these students.
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S.S. S.S., the one named plaintiff who is part of the proposed class, has mental health disabilities including depression, attention deficit hyperactivity disorder, attention deficit disorder, and a mood disorder. He attended various neighborhood elementary schools from first grade through fourth grade. He was initially evaluated by SPS in second grade, but was not found to be eligible for special education services at that time. During fourth grade, S.S. experienced emotional and behavioral problems at school. SPS performed a psychoeducational evaluation, and S.S. also received a private psychological evaluation. SPS found S.S. eligible for special education services at that time and proposed an IEP for him. His mother accepted the IEP and S.S. began attending the SPDS elementary school at the beginning of his fifth grade year. S.S. continued to have difficulties while attending the SPDS and eventually SPS proposed S.S. be placed in an even more restrictive program within the SPDS. After consenting to the placement, S.S.’s mother filed an appeal using the administrative process provided for by the IDEA. As part of her appeal, she raised class claims similar to those raised here; however those claims were later dismissed by agreement of the parties. While the administrative process was pending, SPS placed S.S. at the SEBS program at Chestnut Accelerated Middle School (“Chestnut”), a neighborhood school, for an extended evaluation. At the end of the extended evaluation period SPS returned S.S. to the SPDS. The administrative process initiated by S.S.’s mother concluded with a finding that S.S.’s placement at the SPDS satisfied the requirements of the IDEA and a less restrictive placement in the SEBS program at Chestnut would not have done so. S.S. has not appealed that finding, but has exhausted the administrative process available under the IDEA. D.S. D.S. is a member of the proposed class. He attended a neighborhood elementary school prior to being enrolled at the SPDS. (Dkt. No. 159-8, Declaration of D.S., father of D.S.) While a
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student at the neighborhood school, D.S. was disciplined for certain behaviors. (Id.) His father does not remember the staff at the neighborhood school making any effort to determine whether the behavior was the result of D.S.’s disability; however, Defendants assert D.S. was in a SEBS program, received a Functional Behavioral Assessment (“FBA”), and had a BIP while attending his neighborhood school. When D.S. was in fourth grade, his mental health disability resulted in a oneweek hospitalization. (Id.) Following the hospitalization, D.S. was placed at the SPDS. (Id.) The placement was later made permanent. D.S.’s father was not aware of any efforts made to coordinate care between the school and outside providers or to determine whether D.S. could return to his neighborhood school with proper supports. (Id.). Despite providing SPS with documentation from D.S.’s therapist recommending he be moved out of the SPDS, D.S. remains at the SPDS. He is currently placed in the Transitions program at the SPDS high school pursuant to an Agreement Reached Through Mediation signed by D.S.’s father.
Plaintiffs do not contend D.S. has exhausted the administrative process available under the IDEA. J.R.
J.R. is a member of the proposed class. He has a mental health disability and began attending school at the SPDS during the 2015-16 school year. Prior to being transferred to the SPDS, J.R. attended school at the Chestnut Accelerated Middle School (“Chestnut”), a neighborhood school. While attending Chestnut, J.R. was frequently suspended from school for behavioral problems related to his mental health disability. J.R.’s father, P.R., received phone calls, but was not provided any documentation related to the suspensions.
On one occasion, staff at Chestnut called a crisis services team to provide J.R. with emergency care, but did not communicate directly with J.R.’s father. J.R. was placed in a partial hospitalization and when he was discharged from the partial hospitalization program, SPS
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unilaterally placed him at the SPDS. J.R. dislikes SPDS and wishes to return to a neighborhood school.
Defendants state J.R. received an IEP, FBA, BIP, and Speech Language Evaluation when he was in second grade at his neighborhood school. Additionally, they assert he was first placed at the SPDS in 2012 for a six-week evaluation with the consent of his parents. Following the evaluation period and the examination of data collected during that time, J.R.’s IEP team recommended he return to the SEBS program at his neighborhood school. He attended that program during fourth and fifth grade before being placed at the SPDS pursuant to his IEP.
Plaintiffs do not contend J.R. has exhausted the administrative process available under the IDEA. J.C.
J.C. is a 19-year-old resident of Springfield and member of the proposed class. He previously attended the SPDS, but dropped out without receiving a high school diploma. Prior to attending the SPDS he was enrolled in the SEBS program at the High School of Science and Technology (“Sci. Tech.”), a neighborhood school. While in the SEBS program, J.C. had behavioral problems. In response, SPS transferred him to the SPDS. Although his mother wanted him transferred to another neighborhood school or a vocational program, she consented to the transfer because she did not believe she had any other choice. Defendants assert the transfer was made at the recommendation of the IEP team, following the evaluation of data collected by a behavioral specialist and a neuropsychologist. After attending the SPDS for a period of time, J.C. asked to go back to Sci. Tech. or another neighborhood high school. His request was denied and soon after he stopped attending school.
Plaintiffs do not contend J.C. has exhausted the administrative process available under the IDEA.
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L.P. L.P. was an eighth grader at the SPDS during the 2015-16 school year, has a mental health
disability, and is a member of the proposed class. Prior to attending the SPDS, L.P. attended elementary school at three different neighborhood schools. When he was in fifth grade, L.P. had an FBA and a BIP. L.P. attended middle school at Chestnut. While at Chestnut, L.P. enjoyed reading and math classes, but struggled to understand his school work because of his disability. L.P. is wellbehaved outside of school, but he began having behavioral problems at school. The staff at Chestnut responded to L.P.’s behavioral problems by threatening him with court or probation. L.P. was physically restrained and, on one occasion, was hit by staff at Chestnut. After that incident, L.P.’s mother, M.P., applied for a criminal complaint. The application was denied by the clerk magistrate after the Chestnut principal explained that the incident happened while L.P. was having a mental health crisis.
After M.P. filed her application for a criminal complaint, she received notice that staff at Chestnut had initiated delinquency proceedings against L.P.; M.P. believes that action was initiated in retaliation. Around the same time, SPS reassigned L.P. to the SPDS. Since M.P. was concerned about the way L.P. had been treated at Chestnut, she consented to the transfer. M.P. has tried to have L.P. moved back to a neighborhood school, but has been unsuccessful. It is her understanding that SPS would have placed L.P. back at a neighborhood school if she was willing to waive any claims for special education services for him.
Plaintiffs do not contend L.P. has exhausted the administrative process available under the IDEA. A.Mu.
A.Mu. is fourteen years old, was enrolled at the SPDS from 2013 through June of 2015, and is a member of the proposed class. Plaintiffs’ offered expert, Dr. Leone, reviewed A.Mu.’s school
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records and found comments indicating that multiple SPS employees viewed his difficulties as stemming from lack of effort or motivation, rather than his disability.
Plaintiffs do not contend A.Mu. has exhausted the administrative process available under the IDEA. K.L.
K.L. is a member of the proposed class. Prior to attending the SPDS, she was enrolled in the SEBS program at Commerce High School. During an altercation with another student, K.L. hit a police officer in the thigh while the officer attempted to place her in handcuffs. K.L. was charged with disturbing a school, assault and battery on a police officer, and resisting arrest. Plaintiff’s offered expert, Dr. Leone, reviewed her records and opined that a school using SBBS would have had other tools available to help K.L. and would not have called the police or attempted to criminalize behavior that was connected to a student’s mental health disability.
Plaintiffs do not contend K.L. has exhausted the administrative process available under the IDEA. K.H.
K.H. was enrolled in the SEBS program at Van Sickle Middle School during the 2010-11 academic year and is a member of the proposed class. An IEP developed for him in January of 2011 stated that he could complete grade level curriculum with help from support staff and that he was consistently able to participate in some integrated classes. Plaintiffs’ expert, Dr. Leone, opines that K.H. could have remained at a neighborhood school had he been provided with SBBS. Dr. Leone does not, however, describe particular areas of difficulty for K.H. or indicate how implementation of SBBS would have addressed his needs.
Plaintiffs do not contend K.H. has exhausted the administrative process available under the IDEA.
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W.C. W.C. is a member of the proposed class. In elementary school he was placed in a SEBS
program. His records indicate he had academic and behavioral difficulties in that program. Those difficulties continued as he attended middle school at Chestnut. However, Plaintiffs’ proposed expert, Dr. Leone, has reviewed his school records and concluded that W.C. received no meaningful assessment or evaluation of his behavioral challenges until he was in eighth grade. When a psychological evaluation was conducted, the recommended services included a “behavior management plan.” The first BIP in W.C.’s school records was dated March 1, 2011. Just days later, before there was sufficient time to meaningfully implement the BIP, W.C. was transferred from Chestnut to the SPDS.
Plaintiffs do not contend W.C. has exhausted the administrative process available under the IDEA. L.C.
L.C. is a member of the proposed class. He suffers from Post-traumatic Stress Disorder and Attention Deficit Hyperactivity Disorder (“ADHD”). Currently, L.C. is enrolled in the 8th grade at the SPDS. In 2008 he attended kindergarten for a second time at his neighborhood elementary school, Brightwood Elementary in a Partial Inclusion Program. He had difficulty with large groups and was behind academically. The following year he attended his neighborhood school, Mary O. Pottenger Elementary School, and was again placed in a SEBS program. He had a difficult time adjusting and was suspended for hitting, biting, and kicking staff and other students. L.C. often isolated himself from the rest of his class. From 2010 to 2014, L.C. attended the SEBS program at Gerena Elementary School, which was his neighborhood school.1 During these years, L.C.
 1 The record is silent as to reason L.C. had three different neighborhood schools while in elementary school, but the court observes that students in transient living situations are likely to experience transitions among neighborhood schools.
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continued to be aggressive towards staff and other students. He continued to self-isolate and his academics suffered. At an IEP Team meeting at the end of the 2013-14 school year, L.C.’s SPS Case Manager proposed to L.C.’s parents that he attend the SPDS middle school.
Plaintiffs do not contend L.C. has exhausted the administrative process available under the IDEA. J.M.
J.M is a member of the proposed class and is currently a student at the SPDS middle school. He is diagnosed with ADHD and Asperger’s syndrome. In 2013, while attending a Partial Inclusion Program at his neighborhood elementary school, Glickman Elementary School, J.M experienced difficulties with changes to routines, working with classmates, and high noise levels. He was often disruptive. In November of 2013, J.M. was hospitalized. When he returned from the hospital, J.M.’s SPS Case Manager proposed to his mother that he be placed at the SPDS elementary school. She agreed with the recommendation.
Plaintiffs do not contend J.M. has exhausted the administrative process available under the IDEA. Z.A.
Z.A. is a member of the proposed class. He suffers from seizures, Post-traumatic Stress Disorder, Anxiety, Depressive Disorder, Mood Disorder and Oppositional Defiant Disorder. In the spring of 2012 he attended his neighborhood elementary school in a Partial Inclusion Program. The following fall he transitioned to a SEBS program at Marcus Kiley Middle School, his neighborhood middle school. While in the SEBS program, Z.A. had a number of difficulties. He had difficulty completing assignments and transitioning between tasks. Z.A. was argumentative with authority figures and referred to other students using inappropriate language and racial slurs. When he was
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upset he would become destructive: climbing on furniture, throwing furniture, and punching walls. At some point in 2012, Z.A. was hospitalized.
At a 2013 IEP meeting, Z.A.’s mother insisted Z.A. be placed at the SPDS; the IEP Team had proposed that Z.A. remain at the neighborhood middle school. Z.A. attended the SPDS from 2013 until 2015. During that time, his use of inappropriate language decreased, he increased the percentage of assignments he completed, and his destructive behaviors diminished significantly. In January of 2016, Z.A. transitioned back to the SEBS program at his neighborhood middle school, which at that time was Van Sickle Academy.
Plaintiffs do not contend Z.A. has exhausted the administrative process available under the IDEA.
III. DISCUSSION A. Statutory Background
As the court described in more detail in its Memorandum and Order denying Defendants’ Motion to Dismiss (Dkt. No. 102), both the ADA and the IDEA impose obligations on public school districts relating to the provision of services to disabled students. Title II of the ADA is a broadly applicable civil rights statute which bars public entities from discriminating against a “qualified individual with a disability” or excluding them from participation in or denying them “the benefits of the services, programs, or activities of a public entity.” 42 U.S.C. § 12132. Pursuant to Title II, when a public entity provides an “aid, benefit, or service,” it cannot, on account of disability, give disabled individuals an “opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.” 28 C.F.R. § 35.130(b)(1)(ii). A public entity is required to “make reasonable modifications in policies, practices, or procedures” when necessary to avoid discrimination on the basis of disability unless it “can demonstrate that making the
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modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7); see also 42 U.S.C. § 12182(b)(2)(A)(ii). The ADA does not specify how public entities must meet their general obligation to provide equal access.
The IDEA, on the other hand, imposes a detailed set of substantive and procedural obligations on school districts receiving federal funds in order to ensure school districts provide appropriate educational services to students with disabilities. Under the IDEA, the adequacy of a placement is not measured against what is provided to other students. See, e.g. C.G. ex rel. A.S. v. Five Town Comm. Sch. Dist., 513 F.3d 279, 284 (1st Cir. 2008); Bd of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 181-82 (1982). Instead, school districts are required to follow specific procedures to create, and implement, an “individualized educational program” (“IEP”) for each disabled student. Substantively, each IEP must provide the disabled student with “[a] free appropriate public education,” (“FAPE”). Burlington v. Dept. of Educ., 736 F.2d 773, 788-89 (1st Cir. 1984). The FAPE requirement “establishes a basic floor of education.” Id. School districts are required to “provide an adequate and appropriate education,” but are not “under a compulsion to afford a disabled child an ideal or an optimal education.” C.G., 513 F.3d at 284.
The regulations implementing the IDEA further require that a FAPE be provided in “the least restrictive environment” (“LRE”), meaning that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are nondisabled.” 20 U.S.C. § 1412(a)(5)(A). The LRE requirement encourages placements that give disabled students access to the same educational experiences available to nondisabled students, as long as such a placement provides a FAPE, even if a disabled student might better maximize his or her educational potential in a more restricted environment. See Roland M. v. Concord Sch. Comm., 910 F.2d 983, 993 (1st Cir. 1990). Under the IDEA, an appropriate educational plan must balance “the marginal benefits to be gained or lost on both sides of the maximum benefit/least restrictive fulcrum.” Id. As with all
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aspects of the development of IEPs under the IDEA, such a balancing must be based on the specific needs of the individual child.
A set of procedures are available to help parents and school districts resolve disputes related to matters governed by the IDEA. Any party is entitled to make a formal complaint about “any matter relating to the identification, evaluation, or educational placement of [a] child, or the provision of a free appropriate education to such child.” 20 U.S.C. § 1415(b)(6). A complaining party “has recourse to an impartial due process hearing,” either conducted by a state educational agency or conducted at the local level with an opportunity to appeal to a state educational agency. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 58 (1st Cir. 2002). Following a due process hearing, a dissatisfied party can bring suit in state or federal court. Id. at 59.
The IDEA requires that a party exhaust their administrative remedies before filing suit in order to ensure the educational agency has the opportunity “to develop a factual record, to apply its expertise to the problem, to exercise its discretion, and to correct its own mistakes,” prior to litigation. Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (1st Cir. 1989). Exhaustion is not only required before a party can litigate issues arising under the IDEA; a litigating party must also exhaust before bringing suit “pursuant to a different statute so long as the party is seeking relief that is available under subchapter II of IDEA.” Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000). Absent an exception, these procedures must be exhausted before a party can litigate a claim under the IDEA. Id.
Exhaustion is not required if it would be futile or inadequate. Honig v. Doe, 484 U.S. 305, 327 (1988) (interpreting the requirement under the predecessor statute). At the same time, “[a]llowing plaintiffs to bypass the IDEA’s administrative process en route to state or federal court disrupts [the IDEA’s] carefully calibrated balance and shifts the burden of factfinding from the educational specialists to the judiciary” in a manner that “is directly at odds with the method of the IDEA.”
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Frazier, 276 F.3d at 61. The First Circuit has balanced these competing interests by requiring exhaustion of administrative remedies where the advantages of exhaustion apply, “even though the administrative process does not offer the specific form of relief sought by the plaintiff.” Id. A party seeking an exception to the exhaustion requirement bears the burden to demonstrate that such an exception applies. Id. at 59.
B. Exhaustion As this case involves a dispute regarding the provision of special education services, the
court must first determine how the IDEA administrative exhaustion requirement applies. While S.S. exhausted his administrative remedies prior to this litigation, Plaintiffs have not limited the proposed class to include only those who have exhausted their IDEA procedural remedies. Plaintiffs also have not argued that there is an exception to the exhaustion requirement applicable simply because Plaintiffs have framed this litigation as a class action, and the court has found no such exception. See, e.g., Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 494 n.3 (7th Cir. 2012) (considering whether futility exception could be applied “to excuse the plaintiffs’ failure to exhaust administrative remedies prior to bringing a class-action suit”); Hoeft v. Tucson Uni. Sch. Dist., 967 F.2d 1298, 1304 (9th Cir. 1992) (declining to recognize a separate exhaustion exception for cases involving challenges to policies applied to all members of a proposed class). The court therefore considers whether exhaustion is required and, if so, whether an established exception applies.
When a plaintiff brings a suit under a statute other than the IDEA, exhaustion is still required if the relief sought is also available under the IDEA; however, consideration of the futility exception “overlaps with the ‘relief available’ language of § 1415(l) in the sense that relief is not available within the meaning of § 1415(l) if the due process hearing provided by subchapter II of IDEA does not provide relief that addresses the claim of the complainant.” Weber v. Cranston Sch.
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Comm., 212 F.3d 41, 52 (1st Cir. 2000). Thus, a plaintiff is not required to “participate in an IDEA due process hearing,” before bringing a claim under the ADA, “if the relief available through such a hearing would not address the claim of the party.” Id. However, even if an IDEA due process hearing cannot provide the exact relief sought by the party, exhaustion may be required if the underlying purposes of the exhaustion requirement will be served. Frazier, 276 F.3d at 61.
For example, in Frazier, the First Circuit ruled that a plaintiff was required to exhaust remedies available under the IDEA before filing a suit seeking money damages under 42 U.S.C. § 1983, based on violations of the IDEA, even though the specific remedy sought, money damages, is not available through the IDEA administrative process. The First Circuit reviewed the rationale behind the exhaustion requirement and determined the benefits provided by the requirement, most importantly the creation of an evidentiary record by educational professionals with specialized knowledge, would accrue where the underlying claims concerned topics relevant to the IDEA, such as “the evaluation and education of those with special needs.” Id.
While Plaintiffs do not need to demonstrate a violation of the IDEA in order to prevail on their ADA claim, their claim does concern the delivery of services to students whose educational programs are governed by IEPs. To the extent there are flaws in the IEPs or the implementation of IEPs of members of the proposed class, requiring administrative exhaustion ensures “that educational agencies will have an opportunity to correct shortcomings in a disabled student’s . . . IEP,” before the dispute reaches litigation and consistent with the regulatory scheme established under the IDEA. Id. For example, the mother of L.P. asserts that SPS was willing to return L.P. to a neighborhood school if she waived claims to special education services; if this is accurate, it is possible that L.P. is placed at the SPDS in violation of the IDEA and administrative exhaustion could provide L.P. a remedy that would remove him from the proposed class. Similarly, if W.C. was, in fact, placed at the SPDS just days after his first BIP was drafted, exhausting his IDEA remedies
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could result in a placement at a neighborhood school where the BIP can be properly implemented. Since the members of the proposed class may achieve a remedy through an IDEA administrative hearing related to the claims raised here, the court finds the IDEA exhaustion requirement applies to individual members of the proposed class.
The exhaustion requirement provides one basis for denying Plaintiffs’ Motion for Class Certification. Some of the same concerns that lead the court to that decision also demonstrate that Plaintiffs have not met their burden to establish the elements required for class certification.
C. Class Certification Standard “The class action is ‘an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). This exception is justified only when there is a class representative who is part of the class and shares the same interest and injury as other class members. Id. Rule 23 sets out the requirements for class certification. A party seeking certification of a class bears the burden of demonstrating the proposed class meets all four of the requirements under Rule 23(a) and one of the additional requirements under Rule 23(b).2 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). The four requirements of Rule 23(a) are (1) numerosity, meaning the class is so numerous that joinder of all members is impracticable; (2) commonality, meaning there are questions of law or fact that are common to the class; (3) typicality, meaning there are claims or defenses available to the representative parties that are typical of those available to the other class members; and (4) adequacy, meaning the representative parties have interests sufficiently aligned with the interests of class members, and that the representatives are able
 2In addition, counsel for the class must also demonstrate they are qualified and capable of representing the class. Fed. R. Civ. P. 23(g). This last element has not been contested by Defendants and the court, seeing no basis for any contest, finds counsel for the proposed class qualified and capable.
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to fairly and adequately protect the interests of the class. Of the several requirements under Rule 23(b), Plaintiffs assert their claim satisfies 23(b)(2), which requires that the opposing party “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). When a plaintiff cannot meet their burden as to any of these elements, class certification is not warranted.
The First Circuit describes the first element, numerosity, as presenting a “low threshold,” generally met where the proposed class includes at least forty members. García-Rubiera v. Calderón, 570 F.3d 443, 460 (1st Cir. 2009) (citing Steward v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001)). Absent the exhaustion requirement, Plaintiffs proposed class easily meets the numerosity requirement. More than two hundred students are currently enrolled at the SPDS and there are other students who have dropped out rather than attend the SPDS. In the absence of this court’s ruling regarding exhaustion, Plaintiffs would certainly have established numerosity.
Historically, the second element, commonality, has also been treated as setting a “low bar.” In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 19 (1st Cir. 2008). More recently, the Supreme Court has clarified that though Rule 23(a) frames the second element as requiring only a demonstration that “there are questions of law or fact common to the class,” commonality requires “the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Wal-Mart, 564 U.S. at 349-50. Following Wal-Mart, it is not sufficient for a plaintiff to allege merely that all class members have suffered a violation of the same law; plaintiffs’ “claims must depend upon a common contention” and “[t]hat common contention . . . must be of such a nature that it is capable of classwide resolution.” Id. at 350. A contention is capable of classwide resolution if the “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.
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Here, Plaintiffs assert “that Springfield’s systemic denial of SBBS ‘harms all students in the class,’” the failure to offer SBBS either violated the ADA as to all students or no students, and, therefore, an order requiring SPS to provide SBBS at all neighborhood schools would resolve the case for all class members. (Dkt. No. 157 Pls.’ Supp. Mem. in Supp. of Mot. for Class Cert., quoting Dkt. 158-1, Leone Statement, at ¶ 54.) The court does not find this framing persuasive. Plaintiffs have placed SBBS at the center of their claim, alleging a failure to provide it caused a common harm to all members of the proposed class and that an order requiring Defendants to provide it would provide a classwide remedy. Implicit in the framing is the presumption that SBBS is a term that refers to a well-defined program that can be implemented in a manner that will benefit all members of the proposed class regardless of the specific histories, diagnoses, and behaviors of individual class members. Yet, at the hearing, Plaintiffs conceded that SBBS is only a term they put forth for this litigation to refer to a specific set of obvious, best-practice-related services. Plaintiffs were unable to direct the court to any academic studies that include the concept of an actual SBBS program as they framed it.
Plaintiffs’ admission that SBBS is not an identifiable program or even a term used within the wider special education field directly undercuts Dr. Leone’s assertions that there the exists “a professional consensus” that students like the proposed class members “require SBBS” in order to access educational services equal to those available to students without disabilities and could only be successfully educated in neighborhood schools if SBBS were provided. (Dkt. No. 158-1, Leone Statement ¶ 41.) It also raises the question of how Defendants could have had a policy or practice with respect to the provision of SBBS, prior to the initiation of this suit, which could form the basis of an ADA violation.
Looking past the packaging, the court finds insufficient evidence to establish all SPDS placements of members of the proposed class could have been prevented by the provision of the
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services comprising SBBS. The court further finds insufficient evidence these SBBS phrased services could provide a single remedy applicable to the whole class. The four services comprising SBBS are described by Plaintiffs in extraordinarily broad terms, consistent with common sense but offering no insight into practical application. Each service would need to be implemented using the same type of individualized process already required under the IDEA. Even if these services could, in theory, provide a universally positive outcome, the diversity of circumstances affecting members of the proposed class will create a myriad of unique challenges that will have to be overcome on a student by student basis in order to implement each of these entwined services. For example, determining behavioral triggers may prove to be a very difficult undertaking for some members of proposed class and implementing parental training will be difficult, if not impossible, for some members of the proposed class. Additionally, while the ADA obligates school districts to make accommodations necessary to provide equal access to educational services to all students regardless of disability, that obligation must be harmonized with the far more specific obligations imposed by the IDEA. U.S. v. Lahey Clinic Hospital, Inc., 399 F.3d 1, 10 (1st Cir. 2005) (stating federal statutes are to be read harmoniously, unless Congress has clearly and unambiguously expressed a contrary intent). Each member of the class was placed following the creation of an IEP and any alternative placement would have to satisfy both the equal access obligation under the ADA and the individualized obligations under the IDEA, a determination that must be made separately for each student. In short, Plaintiffs have failed to demonstrate that all SPDS placements could have been prevented by the provision of or that SBBS could be applied to effect a classwide remedy.
Having concluded that Plaintiffs have not met their burden with respect to the commonality element for class certification, the court could end its analysis here. However, for reasons similar to those underlying the court’s conclusion that IDEA exhaustion is required of all plaintiffs in this case, the court determines that Plaintiffs have also failed to establish the third and fourth requirements of
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Rule 23(a): typicality and adequacy. Prior to bringing this suit, Plaintiff first exhausted his IDEA remedies. This process included a finding that SPS had met its obligations to provide S.S. with a FAPE in the LRE. Plaintiffs have not challenged that determination and so it is the law of this case with respect to S.S., distinguishing the claims available to S.S. from those that may be available to other members of the proposed class. Similarly, the fact S.S. has exhausted his IDEA remedies sets his claims apart from those of other members of the proposed class who have not exhausted, and prevents Plaintiffs from demonstrating that S.S. can fairly and adequately represent the class. See Miller v. Board of Ed. Of Albuquerque Pub. Sch., 455 F. Supp. 2d 1286, 1294 (D. N.M. 2006).

IV. CONCLUSION For the reasons discussed above, the court denies Plaintiffs’ Motion for Class Certification. For purposes of reaching this ruling the court has considered the opinions of Plaintiffs’ proffered expert, without first deciding whether such consideration is warranted. As Defendants’ have achieved their desired outcome as to the Motion for Class Certification, the court finds moot their Motion to Exclude or Limit and their Motion for an Evidentiary Hearing.

It is So Ordered.

_/s/ Mark G. Mastroianni________ MARK G. MASTROIANNI United States District Judge

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 Case 3:14-cv-30116-MGM Document 55 Filed 02/11/15 Page 1 of 24

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

S.S., a minor, by his mother, S.Y., on behalf of himself )

and other similarly situated students, the

)

PARENT/PROFESSIONAL ADVOCACY LEAGUE, )

and the DISABILITY LAW CENTER,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF SPRINGFIELD, MASSACHUSETTS;

)

DOMENIC SARNO, in his official capacity as Mayor )

of City of Springfield; SPRINGFIELD PUBLIC

)

SCHOOLS; DANIEL J. WARWICK, in his official

)

capacity as Superintendent of Springfield Public

)

Schools,

)

Defendants.

)

CIVIL ACTION NO. 14-30116
Leave to File Granted on February 10, 2015, Dkt. No. 53

FIRST AMENDED CLASS ACTION COMPLAINT I. INTRODUCTION
1. The City of Springfield (“City”), Springfield Public Schools (“SPS”), Mayor Sarno, and Superintendent Warwick (collectively “Defendants”) operate a discriminatory public school system that denies hundreds of children with a mental health disability equal educational opportunity and the opportunity to be educated with their peers without a disability.
2. Instead of providing these children the services they need to be successfully educated in the neighborhood and other schools attended by their peers (“neighborhood schools”), Defendants consign these children to the separate and inferior Public Day School.
3. The Public Day School is not a therapeutic learning environment. Children in the Public Day School do not have the same opportunity to learn and to graduate that is afforded their peers without a disability in Springfield’s neighborhood schools. Academic expectations

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are low. Education is not the primary mission of the Public Day School, and students make little academic progress there.
4. Instead of fostering learning, the focus of the Public Day School is on behavior control using drastic methods including dangerous physical restraints, inappropriate forced isolation in padded rooms, threatened and repeated arrests, and suspensions for minor offenses. Far from being therapeutic, placement in the Public Day School is more likely to exacerbate a child’s mental health condition than improve it.
5. The Public Day School pushes many students out of school altogether. Many students drop out due to the inferior education and punitive climate of the Public Day School. Others are detained in the juvenile justice system as a result of arrests at the Public Day School.
6. The Public Day School is physically segregated from SPS’s neighborhood schools. It is located on three campuses and students consigned to the Public Day School are afforded zero opportunity to interact with students in SPS’s neighborhood schools.
7. Tragically, the children placed in the Public Day School do not need to be there. These are children of great promise. They could be educated in neighborhood schools and given the same opportunity to progress academically and to graduate that is enjoyed by their peers without a disability. These children can be educated successfully in SPS’s neighborhood schools with reasonable modification of SPS’s programs and services and with the aid of appropriate school-based behavior services.
8. Defendants’ failure to reasonably modify SPS’s programs and services, and instead placing children with a mental health disability in a wholly segregated educational setting, violates the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq.

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9. The ADA mandates that Defendants (i) provide children with a mental health disability educational opportunities that are equal to and as effective as those provided other students; and (ii) serve students with a mental health disability in the most integrated setting appropriate to their needs, that is, the setting in which they have the greatest opportunity to be engaged with their peers without a disability. Defendants are violating both of the ADA’s legal mandates.
10. The ADA imposes on Defendants the obligation to reasonably modify SPS’s programs and services to avoid discrimination. Providing children with a mental health disability access to school-based behavior services -- to afford them equal educational opportunity and to enable them to be educated in neighborhood schools -- is a reasonable modification required by the ADA.
11. Plaintiff S.S., a sixteen year-old with a mental health disability who has been segregated in the Public Day School, brings this suit on behalf of himself and other similarly situated students. Plaintiff Parent/Professional Advocacy League (“PPAL”) is a statewide, grassroots family organization that advocates for improved access to services for children with a mental health disability and their families. Plaintiff Disability Law Center (“DLC”) is the statewide protection and advocacy system for Massachusetts, which provides protection and advocacy services for individuals with disabilities, including children with a mental health disability in SPS. Plaintiffs seek injunctive and declaratory relief for ongoing violations of the ADA, including an order that Defendants provide Plaintiff S.S. and the Plaintiff class with school-based behavior services in neighborhood schools to afford them an equal educational opportunity and enable them to be educated in neighborhood schools with their peers without a disability.

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II. JURISDICTION AND VENUE 12. This court has jurisdiction over this action under Title II of the ADA, 42 U.S.C.
§§ 12131-12133, and 28 U.S.C. §§ 1331. Declaratory relief is available pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. § 2202, and Rule 65 of the Federal Rules of Civil Procedure.
13. Venue is proper in the District of Massachusetts pursuant to 28 U.S.C. § 1391(b)(2), since all of the acts and omissions giving rise to these claims occurred in the Commonwealth of Massachusetts. Venue is proper in the Western Division since the individual Plaintiff and all of the Defendants reside or are located in that Division. Local R. 40.1(D)(1)(a). III. EXHAUSTION OF ADMINISTRATIVE REMEDIES
14. Plaintiff S.S. filed a Request for Hearing with the Massachusetts Bureau of Special Education Appeals (“BSEA”) on behalf of himself and a class of similarly situated students on June 18, 2013, and an Amended Request on July 22, 2013, seeking injunctive and declaratory relief. In particular, S.S. contended that SPS did not reasonably modify its programs and services to ensure that he and members of the class are afforded equal educational opportunity, including the opportunity to receive an education that is equal to and as effective as that provided other students, and to receive educational programs and services in the most integrated setting appropriate to their needs.
15. S.S. contended that SPS segregates him and similarly situated students in the separate and inferior Public Day School in violation of the ADA.
16. On October 15, 2013, upon the motion of SPS, a BSEA Hearing Officer dismissed the class claims on the ground that the BSEA had no jurisdiction to decide them.

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17. An administrative hearing before the BSEA was held in this matter on January 22-24, 2014 to address S.S.’s individual claims.
18. On March 27, 2014, the BSEA Hearing Officer issued a ruling dismissing all of S.S.’s ADA claims. The Hearing Officer further ruled that S.S.’s placement and Individualized Education Plan were reasonably calculated to provide him a free appropriate public education under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400, et seq., M.G.L. c. 30A and c. 71B, and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), codified at 29 U.S.C. § 794.
19. Having exhausted administrative remedies on behalf of himself and a class of similarly situated students, S.S. now files this First Amended Class Action Complaint seeking relief under the ADA. S.S. does not appeal the BSEA Hearing Officer’s decision regarding his claims under the IDEA, M.G.L. c. 30A and c. 71B, or Section 504. IV. PARTIES
A. Plaintiffs 20. Plaintiff S.S. is an African American 16 year-old youth with a mental health disability. He resides with his mother and younger siblings in Springfield, Massachusetts. His mother, S.Y., brings this action on his behalf. 21. Plaintiff PPAL is a statewide, grassroots family organization that advocates for improved access to services for children with a mental health disability and their families. Founded in 1991, PPAL is the Massachusetts state affiliate of the Federation of Families for Children’s Mental Health, a national family-run organization that provides leadership at the national level. PPAL has assisted more than 7,000 Massachusetts families who are its constituents, including Plaintiff S.S. and his mother. In the twelve months prior to the filing of

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the original Complaint, more than 150 Springfield families sought help from PPAL. Many of PPAL’s constituents from Springfield (including families who have sought help from PPAL) have children with a mental health disability enrolled in SPS, including children who have been placed in the Public Day School or are at risk of being transferred by SPS into the Public Day School. Through a contract with an advocate based in Holyoke, Massachusetts, PPAL provides services to students in the Public Day School, and their families. PPAL’s constituents, including families in Springfield, have a direct and active role in developing PPAL’s advocacy activities. At least fifty-one percent of the members of PPAL’s Board of Directors are parents of children with a mental health disability.
22. PPAL’s primary place of business is 45 Bromfield St., Boston, Massachusetts 02108, and it has an additional office in Worcester, Massachusetts.
23. Plaintiff DLC is a private not-for-profit Massachusetts corporation that operates the statewide protection and advocacy system for Massachusetts pursuant to the Developmental Disabilities and Bill of Rights Act, (“DD Act”) 42 U.S.C. § 15001, et seq.; the Protection and Advocacy for Individuals with Mental Illness Act, (“PAIMI Act”) 42 U.S.C. § 10801, et seq., and the Protection and Advocacy for Individual Rights (“PAIR”) Act, 29 U.S.C. § 794e; and their implementing regulations. Under these federal statutes and implementing regulations, DLC is responsible for providing protection to and advocacy for the rights of Massachusetts residents with disabilities, including school students with a mental health disability.
24. DLC maintains its primary offices at 11 Beacon Street, Ste. 925, Boston, Massachusetts 02108, and has another office located at 32 Industrial Drive East, Northampton, Massachusetts 01060.

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25. The Governor of Massachusetts designated DLC to be the protection and advocacy system for Massachusetts, pursuant to federal law. See, e.g., 29 C.F.R. § 1386.20. Under federal law, DLC has the authority and the obligation to pursue such legal remedies as may be necessary to protect the rights of individuals with disabilities, including students with a mental health disability in the Springfield Public Schools. 42 U.S.C. § 15041, et seq.; 42 U.S.C. § 10801, et seq.; 29 U.S.C. § 794e.
26. DLC’s constituents include students with a mental health disability in the Springfield Public Schools, including the Public Day School, and their families.
27. DLC’s constituents have a direct and active role in developing DLC’s advocacy activities.
28. As required by federal law, 42 U.S.C. §§ 10805 and 15044, DLC has a multimember governing board, called the Board of Directors, which is responsible for the planning, design, implementation and functioning of the protection and advocacy system. The Board of Directors annually establishes DLC’s priorities.
29. Sixty percent of DLC’s Board of Directors are individuals with disabilities, and/or family members of individuals with disabilities.
30. In accordance with federal law, DLC has an Advisory Council for its advocacy activities under the PAIMI Act. The PAIMI Advisory Council is chaired by a person who has received or is receiving mental health services, and more than 60% of the members of the PAIMI Advisory Council are individuals who have received or are receiving mental health services, or are family members of such individuals.
31. The Board of Directors and the PAIMI Advisory Council include members who, as public school students, received services for or on account of their disabilities and members

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who have children in public schools who are currently receiving services for or on account of their disabilities.
32. Each year, the Advisory Council solicits comments and suggestions from DLC’s constituents about priorities. The Advisory Council annually convenes one or more public hearings for that purpose.
33. The PAIMI Advisory Council and the Board of Directors jointly develop DLC’s policies and priorities for protecting and advocating for individuals with mental illness, who include students with a mental health disability. 42 U.S.C. §§ 10805 (a)(6) & (8). DLC’s current case priorities include advocacy to “increase the availability of quality inclusive programs by representing students seeking less restrictive special education programs.”
34. DLC maintains a grievance procedure for clients or prospective clients to ensure individuals with mental illness and other disabilities have full access to the services that it provides.
B. Defendants 35. Defendant City of Springfield operates and funds SPS, including all public school programs, services, and activities. The City is a public entity as defined by Title II of the ADA. 42 U.S.C. § 12131. The City’s offices are located at 36 Court Street, Springfield, MA 01103. 36. Defendant Domenic Sarno is sued in his official capacity as the Mayor of the City of Springfield. As Mayor, Defendant Sarno supervises and is ultimately responsible for the operations of the executive departments of the City, including SPS and its compliance with federal law. He annually submits a budget to the City Council for SPS’s funding. By City Charter, Mayor Sarno is the Chairman of the Springfield School Committee. Defendant Sarno’s business offices are located at 36 Court Street, Springfield, MA 01103.

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37. Defendant Springfield Public Schools is a public entity as defined by Title II of the ADA. 42 U.S.C. § 12131. SPS’s business offices are located at 1550 Main Street, Springfield, MA 01103.
38. Defendant Daniel J. Warwick is sued in his official capacity as the Superintendent of the Springfield Public Schools. Pursuant to M.G.L. c. 71, § 37, he is appointed by the School Committee. Defendant Warwick is responsible for the daily operations of SPS, including its programs and services for students with a disability. Defendant Warwick’s business offices are located at 1550 Main Street, Springfield, MA 01103. V. CLASS ACTION ALLEGATIONS
39. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, Plaintiff S.S. brings this suit as a class action on his own behalf and on behalf of the following class: All students with a mental health disability who are or have been enrolled in SPS’s Public Day School who are not being educated in an SPS neighborhood school.
40. The class is so numerous that joinder of all members is impracticable. During the 2013-2014 school year, over 233 SPS students with a mental health disability were, or had been, enrolled in the Public Day School. Joinder is also impracticable because SPS routinely excludes new children from SPS’s neighborhood schools and enrolls them in the Public Day School. In addition, most class members lack the means to maintain individual actions.
41. There are questions of law and fact common to the class, including whether Defendants are violating the ADA by, among other actions, employing policies and practices that:

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i.

Deny S.S. and members of the class an opportunity to participate in and

benefit from educational services that is equal to that afforded students

without a mental health disability;

ii.

Deny S.S. and members of the class educational services that are as

effective in affording equal opportunity to obtain the same result, gain the

same benefit, or reach the same level of achievement as that provided

students without a mental health disability;

iii.

Fail to provide S.S. and members of the class educational programs and

services in the most integrated setting appropriate to their needs;

iv.

Fail to reasonably modify SPS’s programs and services as needed to avoid

discrimination; and

v.

Utilize methods of administration that have the effect of defeating or

substantially impairing the accomplishment of the objectives of

Defendants’ educational programs to educate and meet the behavioral

service needs of students with a mental health disability, including S.S.

and the class.

42. The named Plaintiff S.S.’s claims are typical of the claims of the class.

43. The Plaintiff class includes members who are PPAL and DLC constituents.

44. Plaintiff S.S. will fairly and adequately protect the interests of the class. Plaintiff

S.S. will vigorously represent the interests of the unnamed class members, and all members of

the proposed class will benefit from Plaintiff S.S.’s efforts. There is no conflict between the

interests of Plaintiff S.S. and the proposed class.

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45. Defendants have acted and continue to act on grounds generally applicable to the Plaintiff class, thereby making appropriate injunctive and declaratory relief with respect to the class as a whole. VI. THE AMERICANS WITH DISABILITIES ACT
46. Congress enacted the ADA, 42 U.S.C. § 12101 et seq., to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and to provide strong and consistent standards for identifying such discrimination. 42 U.S.C. § 12101(b)(1)&(2).
47. The ADA is based on Congress’s findings that, inter alia, (i) “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem,” 42 U.S.C. § 12101(a)(2), and (ii) “individuals with disabilities continually encounter various forms of discrimination, including … relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.” 42 U.S.C. § 12101(a)(5).
48. In enacting the ADA, Congress also found that “discrimination against individuals with disabilities persists in such critical areas as … education.” 42 U.S.C. § 12101(a)(3).
49. Title II of the ADA 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.” 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130.

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50. Title II of the ADA applies to all of the activities of public entities, including

providing education. Each Defendant is either a public entity subject to Title II of the ADA or

an official responsible for supervising the operations of a public entity subject to Title II of the

ADA. 42 U.S.C. § 12131(1).

51. The discrimination prohibited under Title II of the ADA includes the needless

isolation or segregation of persons with disabilities. Olmstead v. L.C., 527 U.S. 581, 600 (1999)

(“unjustified institutional isolation of persons with disabilities is a form of discrimination”); see

also 2011 Statement of the US Department of Justice on Enforcement of the Integration Mandate

of Title II of the ADA and Olmstead, June 22, 2011 (“DOJ 2011 Statement”).

52. The ADA directs the Attorney General to promulgate regulations enforcing Title

II of the ADA and provides guidance on their content. The regulations promulgated by the

Attorney General require public entities to “make reasonable modifications” to their programs

and services “when the modifications are necessary to avoid discrimination.” 28 C.F.R.

§ 35.130(b)(7).

53. The regulations also specify that it is unlawful discrimination for a public entity

to:

i.

“Afford a qualified individual with a disability an opportunity to

participate in or benefit from the aid, benefit, or service that is not equal to

that afforded others,” 28 C.F.R. § 35.130(b)(1)(ii);

ii.

“Provide a qualified individual with a disability with an aid, benefit, or

service that is not as effective in affording equal opportunity to obtain the

same result, to gain the same benefit, or to reach the same level of

achievement as that provided to others,” 28 C.F.R. § 35.130(b)(1)(iii);

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iii.

Fail to “administer services, programs, and activities in the most integrated

setting appropriate to the needs of qualified individuals with disabilities,”

28 C.F.R. § 35.130(d), which the Attorney General has defined as “a

setting that enables individuals with disabilities to interact with non-

disabled persons to the fullest extent possible,” 28 C.F.R. pt. 35, App. A,

p. 450; or

iv.

“[U]tilize criteria or methods of administration … [t]hat have the purpose

or effect of defeating or substantially impairing accomplishment of the

objectives of the public entity’s program with respect to individuals with

disabilities,” 28 C.F.R. § 35.130(b)(3)(ii).

54. Congress specifically provided for a private right of action to enforce Title II. 42

U.S.C. § 12133 (incorporating the remedies and enforcement procedures available under Title VI

of the Civil Rights Act, which includes a private right of action).

55. This private right of action encompasses the right to privately enforce the Title II

regulations. See DOJ 2011 Statement at 4 (“[P]rivate individuals may file a lawsuit for violation

of the ADA’s integration mandate. A private right of action lies to enforce a regulation that

authoritatively construes a statute.”).

56. The Title II regulations upon which Plaintiffs rely were promulgated at the

specific direction of Congress and do not impose obligations beyond the reach of Title II. 42

U.S.C. § 12134(a).

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VII. STATEMENT OF FACTS A. The Springfield Public Schools 57. Defendant SPS is the second largest school district in Massachusetts, providing
educational programs and services to approximately 25,826 children. Its annual budget for the fiscal year 2014 is $357,868,724. Approximately 62.2% of the children served are Hispanic and 20.2% are African American.
58. SPS has identified approximately 5,032 (19.3%) of its students as having a disability and approximately 640 students (2.4% of all students) as having “emotional disturbance,” a classification used by SPS to refer to students with a mental health disability that interferes with their education. Of the approximately 640 so identified, 233 students (roughly one-third of all students classified as having an “emotional disturbance”) have been assigned to the Public Day School. The Public Day School has separate campuses for elementary, middle, and high school students.
59. SPS operates approximately 50 other schools in addition to the Public Day School.
60. Defendants have not reasonably modified the neighborhood schools to provide school-based behavior services for children with a mental health disability. For students like S.S. and members of the class, the essential components of school-based behavior services, which Defendants fail to provide, are: (a) a comprehensive assessment, including determination of the purpose and triggers for the child’s behavior; (b) a school-based intervention plan that relies on positive support, social skills training, a care coordinator, and adjustments as needed to curriculum or schedule; (c) training for school staff and parents in implementing the plan; and

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(d) coordination with non-school providers involved with the child (collectively, “school-based behavior services”).
61. There is a professional consensus that such school-based behavior services are necessary to afford children like S.S. and Plaintiff class members an equal opportunity to advance academically and graduate and the opportunity to be educated in neighborhood schools along with their peers without a disability.
62. Instead of providing these school-based behavior services, Defendants routinely exclude such students from the neighborhood schools and transfer them to the Public Day School, where they receive an inferior education and are separate from their peers.
B. Springfield’s Public Day School 63. The Public Day School is exclusively for students with a mental health disability. It starts at kindergarten and extends through grade 12 (and up to age 21). During the 2013-14 school year, of the 233 students reported to be in the Public Day School program, 42 were at the elementary level, 63 at the middle school level, and 128 at the high school level. 64. The students in the Public Day School have many talents and strengths. They have the same aspirations as other SPS students. They have hobbies, enjoy sports, and would like to participate in extracurricular activities. After they graduate from high school, they would like to get good jobs, and many would like to go to college. Most have supportive families. 65. The Public Day School pushes many students out of school altogether. Students regularly drop out of the Public Day School because of its inferior education, lack of appropriate services, and punitive climate, including the high risk of suspension and arrest in the Public Day School. Some students are detained in the juvenile justice system as a result of arrests at the

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Public Day School. In some cases, SPS insists that, for the student to continue to receive an education, he or she must go to a similarly segregated private school.
66. The Public Day School is inferior to and separate from SPS’s neighborhood schools. Excluding students from the neighborhood schools needlessly segregates children from their peers without a disability.
67. The Public Day School operates as little more than a “warehouse” for children with a mental health disability. The Public Day School does not provide the same opportunities to learn that are provided to students without a disability. Academic instruction is “dumbed down” and secondary to behavioral control based on the unwarranted assumption that children in the Public Day School are incapable of achieving academically at the same level as their peers without a disability.
68. Children in the Public Day School have virtually no opportunity to engage in extracurricular activities. Students are denied access to nearly all extracurricular activities available in the neighborhood schools, including afterschool sports and clubs and activities devoted to art, drama, poetry, student government, and various cultures. They cannot play interscholastic sports against other schools within SPS or inter-district sports against teams from other school districts. They do not have the opportunity to participate in SPS sponsored college, military, and job informational and recruitment activities available to students in the neighborhood schools.
69. School-based behavior services are largely unavailable to children in the Public Day School, which does not use effective and professionally accepted practices for managing and improving the behavior of children with a mental health disability. Instead, the Public Day

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School uses methods that interfere with their education and the ability to learn, and tend to exacerbate their mental health symptoms.
70. Lacking adequate training and support, Public Day School staff often resort to harsh and counterproductive responses to students’ behavior, including dangerous physical restraints (that risk serious injury or death), unnecessary forced isolation (sometimes for multiple days), and inappropriate arrests and suspensions for minor offenses. The suspensions include formal out-of-school suspensions, in-school suspensions, and “informal suspensions” (e.g., where the Public Day School staff call parents and tell them to remove their child from school for the remainder of the day).
71. The Public Day School also relies heavily on the police for routine disciplinary matters. The City has arranged with the Springfield Police Department for armed and uniformed police officers, known as the “Quebec Unit” to be on the Public Day School campuses. Neither SPS nor the Police Department has adequately trained these officers to work effectively with students with a mental health disability.
72. The police regularly arrest youth for infractions of school rules that elsewhere would be handled through school disciplinary procedures.
73. In addition, Public Day School staff regularly use the police to impose severe discipline, such as physical restraints or placement in isolation rooms, for minor discipline issues such as not following directions or disrupting class.
C. Plaintiff S.S. 74. S.S., who has experienced traumas in his life, is diagnosed with depression and attention deficit and hyperactivity disorder, among other conditions. S.S. has a disability within the meaning of the ADA. His mental health condition substantially limits one or more major life

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activities, including developing and maintaining relationships. S.S. is of a small physical stature; he is approximately five feet, four inches tall and weighs approximately 93 pounds.
75. S.S. is a talented artist who especially likes drawing and theater. S.S. is well organized and has a strong work ethic and keen sense of humor. He enjoys spending time with his family and likes to help his mother with chores around the house and caring for his younger siblings. He enjoys baking cakes, and going to parks, museums, amusement parks, and shopping.
76. S.S. has willingly and actively participated in treatment for his mental health disability. He has taken prescribed psychiatric medication and participates in outpatient mental health therapy. However, as a result of his mental health disability, S.S. sometimes in school talked out of turn, got out of his seat, used inappropriate language, or left class. On rare occasions, he fought with other students, mostly in response to being hit and/or bullied by other students. On occasion, S.S. responded physically to school staff when they tried to physically restrain him.
77. SPS transferred S.S. to the Public Day School approximately five years ago, when he was in the fourth grade. S.S. is currently a ninth grader.
78. SPS recently announced that, if S.S. wanted to continue his education, he must attend a private school that also segregates children with a mental health disability from their peers without a disability. S.S. and his mother have rejected this school as an appropriate setting for educating S.S. S.S. is being denied the opportunity to be educated in a neighborhood school, which is the most integrated setting appropriate to his needs.
79. S.S. could be educated in a neighborhood school if SPS were to reasonably modify its programs and services and provide S.S. with school-based behavior services.

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80. At the Public Day School, S.S. was subjected to dangerous physical restraints, inappropriate forced isolation, suspensions, threatened arrests, and arrests for minor offenses such as swearing, talking out of turn, and getting out of his seat. Staff at the Public Day School enlisted police officers to help them physically restrain S.S. and to isolate him in a padded basement room, which, on at least one occasion, lasted for several days.
81. The Public Day School was not effective in improving S.S.’s behavior in school. To the contrary, it has eroded his self-esteem and exacerbated his mental health symptoms.
82. SPS has a High School Choice program, which allows students to choose their high school through a balloting process. Each high school has its own character and a unique focus, such as vocational education or science and technology. Although S.S. wanted to participate in the balloting process to choose his high school, as a student in the Public Day School, he was barred from doing so.
83. On November 18, 2014, S.S.’s mother withdrew S.S. from school because SPS was unwilling and unable to educate him in a safe and unsegregated setting.
D. The Plaintiff Class 84. S.S. is not alone in his experiences in the Public Day School. These experiences are endured by hundreds of children who also have a mental health disability. These children suffer the same injuries and require the same relief as Plaintiff S.S. 85. Defendants are denying, not only Plaintiff S.S., but also PPAL and DLC constituents and the Plaintiff class, equal educational opportunity and the opportunity to be educated in SPS’s neighborhood schools. 86. N.D., a DLC and PPAL constituent, is an 11 year-old student who is friendly, outgoing and creative. She has been diagnosed as having post-traumatic stress disorder and an

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anxiety disorder. N.D.’s legal guardian, her grandmother, wants N.D. to attend a neighborhood

school with the aid of school-based behavior services. Instead, SPS placed N.D. at the Public

Day School, where she received an inferior education and was subjected to dangerous physical

restraints, inappropriate forced isolation, suspensions and threatened arrests for minor behavior

such as spraying water on others. SPS recently announced that, if N.D. wanted to continue her

education, she must attend a private school that, like the Public Day School, segregates children

with a mental health disability from their peers without a disability.

87. Without school-based behavior services in the neighborhood schools, S.S., PPAL

and DLC constituents, and the Plaintiff class will not have the same opportunity as their peers

without a disability to learn and graduate, or to be educated in SPS’s neighborhood schools.

However, Defendants have failed to reasonably modify SPS’s programs and services to provide

S.S., PPAL and DLC constituents, and the Plaintiff class with school-based behavior services.

88. Through the acts and omissions described above, Defendants are:

i.

Denying S.S., PPAL and DLC constituents, and the Plaintiff class the

opportunity to participate in and benefit from educational services that are

equal to those afforded other students;

ii.

Denying S.S., PPAL and DLC constituents, and the Plaintiff class

educational services that are as effective in affording equal opportunity to

obtain the same result, gain the same benefit, or reach the same level of

achievement as that provided other students;

iii.

Denying S.S., PPAL and DLC constituents, and the Plaintiff class the

opportunity to receive educational programs and services in the most

integrated setting appropriate to their needs;

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iv.

Failing to reasonably modify SPS’s programs and services as needed to

avoid discrimination against S.S., PPAL and DLC constituents, and the

Plaintiff class; and

v.

Utilizing methods of administration that have the effect of defeating or

substantially impairing the accomplishment of the objectives of

Defendants’ educational programs with respect to S.S., PPAL and DLC

constituents, and the Plaintiff class.

COUNT I VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT
89. Plaintiffs re-allege the allegations in all preceding paragraphs as though fully set

forth herein.

90. S.S., PPAL and DLC constituents, and the Plaintiff class are individuals with a

disability within the meaning of the ADA. Their mental health condition substantially limits one

or more major life activities, including developing and maintaining relationships.

91. As school-age children, they are qualified to participate in Defendants’

educational programs and services. 42 U.S.C. § 12131(2).

92. Defendants the City of Springfield and SPS are public entities within the meaning

of the ADA and Defendants Sarno and Warwick are officials responsible for running these

public entities and supervising their operations. 42 U.S.C. § 12131(1).

93. Through the acts and omissions described above, Defendants are violating Title II

of the ADA by:

a. Denying S.S., PPAL and DLC constituents, and the Plaintiff class an

opportunity to participate in and benefit from educational services that is

equal to that afforded other students;

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b. Denying S.S., PPAL and DLC constituents, and the Plaintiff class educational services that are as effective in affording equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as that provided other students;
c. Denying S.S., PPAL and DLC constituents, and the Plaintiff class the opportunity to receive educational programs and services in the most integrated setting appropriate to their needs;
d. Failing to reasonably modify SPS’s programs and services as needed to avoid discrimination against S.S., PPAL and DLC constituents, and the Plaintiff class; and
e. Utilizing methods of administration that have the effect of defeating or substantially impairing the accomplishment of the objectives of Defendants’ educational programs with respect to S.S., PPAL and DLC constituents, and the Plaintiff class.
94. Granting relief to Plaintiffs would not fundamentally alter Defendants’ programs, services, and activities.
95. The acts and omissions of Defendants have caused and will continue to cause S.S., PPAL and DLC constituents, and the Plaintiff class to suffer irreparable harm, and they have no adequate remedy at law.
RELIEF REQUESTED WHEREFORE, Plaintiffs pray that the Court grant the following relief: A. Order that Plaintiff S.S. may maintain this action as a class action pursuant to
Rule 23(b)(2) of the Federal Rules of Civil Procedure.

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Case 3:14-cv-30116-MGM Document 55 Filed 02/11/15 Page 23 of 24
B. Order and declare that Defendants are violating the rights of S.S. and other similarly situated children under Title II of the ADA, 42 U.S.C. § 12101, et seq., and its implementing regulations.
C. Preliminarily and permanently enjoin Defendants, their successors in office, agents, employees and assigns, and all persons acting in concert with them to provide Plaintiff S.S., PPAL and DLC constituents, and the Plaintiff class with the school-based behavior services they need to enjoy equal educational opportunity and receive educational programs and services in the most integrated setting, as required by Title II of the ADA.
D. Award Plaintiffs’ attorneys’ fees and costs as appropriate and permitted by law, including pursuant to 42 U.S.C. § 12205.
E. Any other relief as this Court finds just and proper.

Dated: February 11, 2015
Ira Burnim* Jennifer Mathis* BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, N.W., Suite 1212 Washington, D.C. 20005 (202) 467-5730 jenniferm@bazelon.org irab@bazelon.org
Robert Fleischner, BBO # 171320 Deborah A. Dorfman, BBO # 625003 Samuel Miller*, BBO # 624969 CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, MA 01060 (413) 586-6024 rfleischner@cpr-ma.org ddorfman@cpr-ma.org smiller@cpr-ma.org
* admitted pro hac vice

S.S., a minor, by his mother, S.Y., on behalf of himself and other similarly situated students, the Parent/Professional Advocacy League, and the Disability Law Center,
By their Attorneys,
/s/ Carol E. Head Robert E. McDonnell, BBO # 331470 Carol E. Head, BBO # 652170 Elizabeth M. Sartori, BBO # 672577 Jacqueline S. Delbasty, BBO # 676284 MORGAN, LEWIS & BOCKIUS LLP 1 Federal Street Boston, MA 02110 (617) 951-8000 robert.mcdonnell@morganlewis.com carol.head@morganlewis.com elizabeth.sartori@morganlewis.com jacqueline.delbasty@morganlewis.com

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Case 3:14-cv-30116-MGM Document 55 Filed 02/11/15 Page 24 of 24
CERTIFICATE OF SERVICE I, Carol E. Head, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on February 11, 2015.
/s/ Carol E. Head Carol E. Head

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 Case 3:14-cv-30116-MGM Document 265 Filed 07/19/18 Page 1 of 15

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

S.S., a minor, by his mother, S.Y., on behalf of

*

himself and other similarly situated students; the *

PARENT/PROFESSIONAL ADVOCACY

*

LEAGUE; and the DISABILITY LAW CENTER, *

*

Plaintiffs,

*

*

v.

*

*

CITY OF SPRINGFIELD, MASSACHUSETTS; *

DOMENIC SARNO, in his official capacity as

*

Mayor of City of Springfield; SPRINGFIELD

*

PUBLIC SCHOOLS; DANIEL J. WARWICK, in *

his official capacity as Superintendent of Springfield *

Public Schools,

*

*

Defendants.

*

Civil Action No. 14-30116-MGM

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
(Dkt. No. 203) July 19, 2018

MASTROIANNI, U.S.D.J.

I. INTRODUCTION Following this court’s rulings denying Defendants’ motion to dismiss and denying Plaintiffs’ motion for class certification, Defendants filed a Motion for Judgment on the Pleadings. Defendants assert in their motion, that each of the association plaintiffs, the Parent/Professional Advocacy League (“PPAL”) and the Disability Law Center (“DLC”), lack standing in this case. For the reasons set forth below, the court finds the allegations in the Amended Complaint, previously detailed in the

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court’s order denying Defendants’ Motion to Dismiss, are sufficient to establish that PPAL and DLC have associational standing in this case. Upon concluding PPAL and DLC have associational standing, the court analyzes whether concerns regarding exhaustion warrant entry of judgment on the pleadings in favor of Defendants as to these association plaintiffs. The issue of exhaustion was first raised by Defendants in the context of the standing argument and later briefed separately in response to a request by this court. For the reasons explained below the court will enter judgment for Defendants.
II. PROCEDURAL HISTORY On June 27, 2014, PPAL and S.S., by his mother S.Y., as an individual and representative of a proposed class of students with mental health disabilities who attend or in the future could attend the Public Day School,1 filed this action against the City of Springfield, Springfield Public Schools (“SPS”), and the mayor of Springfield and superintendent of SPS, each in their official capacity. (Compl., Dkt. No. 1.) The one-count complaint alleged Defendants violated Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., with respect to S.S. and members of the proposed class by failing to provide the educational programs and services that would have allowed them equal access to the educational resources offered students attending neighborhood schools.2 Instead, the complaint alleged, SPS places members of the proposed class at the Public Day School, a school operated by SPS and attended only by students with mental health disabilities. The plaintiffs sought preliminary and permanent injunctions requiring Defendants to provide the proposed class with “the school-based behavior services they need to enjoy equal
1 The court continues to use the term Public Day School to refer collectively to the elementary, middle, and high school Public Day School programs as any distinctions between them are not relevant to the court’s current analysis. 2 Neighborhood schools are elementary and middle schools which primarily enroll students based on their residential address and high schools which enroll students through the High School Choice Plan.
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educational opportunity and receive educational programs and services in the most integrated setting, as required by Title II of the ADA.” 3 (Compl. Dkt. No. 1, 20.) In addition to allegations related to the experiences of S.S., the complaint included allegations related to various deficiencies at the Public Day School that had been identified in reports made by the Department of Elementary and Secondary Education (“DESE”).
Defendants responded by collectively filing a motion to dismiss (Dkt. No. 34) asserting that the plaintiffs had failed to “state a claim on which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Their central arguments were (1) the deficiencies identified in the DESE reports were not a sufficient basis for the ADA claim and (2) the ADA claim was not properly brought because (a) S.S. had failed to first exhaust administrative remedies and/or (b) the private right of action established under the ADA was not applicable to the plaintiffs’ claim. Additionally, Defendants argued the claims against the individual defendants should be dismissed because individuals are not subject to suit under the ADA. At that time, Defendants did not raise any concerns about the standing of PPAL.
After the plaintiffs opposed the motion, but before the court issued its ruling, the plaintiffs sought leave to file an amended complaint including DLC as an additional plaintiff; adding allegations about a second student and member of the proposed class, N.D.; adding factual allegations related to events occurring after the suit was filed; and adjusting the definition of the proposed class. (Dkt. No. 48.) The Amended Complaint also removed allegations related to violations allegedly identified in DESE reports. (Dkt. No. 49-2). Defendants opposed the motion on various grounds. However, rather than challenging the standing of DLC at that time, Defendants explicitly “reserved the right” to challenge standing at a later stage. (Dkt. No. 50.)
3 Plaintiffs also sought an order permitting the case to be litigated as a class action, declaratory judgment that the defendants had violated Title II with respect to the proposed class, and an award of attorneys’ fees and costs.
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This court allowed the filing of the Amended Complaint. (Dkt. No. 53.) Plaintiffs subsequently filed a sur-reply to the motion to dismiss, but neither party asked to otherwise supplement the briefing on the motion to dismiss following the filing of the Amended Complaint. After holding a hearing on the matter, the court denied the motion to dismiss, except as to the claims asserted against individual defendants. Consistent with the arguments made by Defendants, the court focused its analysis on the legal sufficiency of the specific claims made by S.S., including legal questions regarding the limits the Individuals with Disabilities in Education Act (“IDEA”) imposes on efforts to bring an ADA claim related to the provision of educational services in a public school setting. The IDEA requires states to provide “[a] free appropriate public education [(“FAPE”)] to all children with disabilities” and also requires that, “[t]o the maximum extent appropriate” children with disabilities receive FAPE in the least restrictive environment (“LRE”).4 20 U.S.C. § 1412(a). The IDEA also includes language specifically stating the rights it provides do not supersede rights that might otherwise be available pursuant to other statutes. 20 U.S.C. § 1415(l). However, before a litigant can file suit under another statute in order to seek a remedy available under the IDEA, they must first exhaust the IDEA administrative process. Id.
Central to the parties’ arguments was whether Plaintiffs’ ADA claims were simply disguised IDEA claims. Defendants argued this was the case and, therefore, IDEA exhaustion was not only required, but proper exhaustion necessarily included an appeal of the administrative ruling finding no IDEA violation. Plaintiffs countered they sought relief for conduct that violated only the ADA and since they were not alleging any violation of the IDEA, administrative exhaustion did not require them to appeal the administrative ruling applying the IDEA. Though the statutory language
4 In order to meet the LRE requirement, children with disabilities must be educated together with children without disabilities unless “the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5).
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is easily recited, its application in this case was not self-evident. Relying on the First Circuit’s decision in Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002), this court concluded that since exhaustion is required “though a party might seek relief that ‘is not available in the administrative venue,’” Plaintiffs were required to exhaust the IDEA administrative procedures, even if the specific relief sought could not be provided through that process. S.S. v. City of Springfield (“S.S. I”), 146 F. Supp. 3d 414, 418 (D. Mass. 2015). This court went on to conclude that S.S. had fulfilled the exhaustion requirement by proceeding through a hearing before the Massachusetts Board of Special Education Appeals (“BSEA”) and was not required to also bring an IDEA claim appealing the BSEA’s decision in order to proceed with the ADA claim.
Following this court’s ruling denying Defendants’ motion to dismiss as to the Springfield defendants, Plaintiffs filed a motion for certification of the proposed class. In deciding that motion, this court once again considered the question of exhaustion in light of the First Circuit’s decision in Frazier and determined that because the claims of the putative class members “concern[ed] the delivery of services to students whose educational programs are governed by [individualized education programs (“IEPs”)],”5 the exhaustion requirement applied to each member of the putative class. Springfield (S.S. II), 318 F.R.D. 210, 222 (D. Mass. 2016). As Plaintiffs conceded that putative class members, other than S.S., had not exhausted the remedies available under the IDEA, the court found exhaustion was one basis for denying the motion to certify the class. Id. at 223-24. Following the court’s denial of the motion for class certification, Defendants filed the instant Motion for Judgment on the Pleadings. Defendants seek entry of judgment against PPAL and DLC, on the grounds that they lack standing to participate in this action.
5 Under the IDEA, “as a condition for receiving federal funds, states must provide all disabled children with a FAPE” and IEPs are “[t]he primary vehicle for delivery of a FAPE.” Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518 F.3d, 18, 23 (1st Cir. 2008); see also 20 U.S.C. §§ 1401(8), 1412(a)(1)(A, 1414(d)(1)(A).
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Since the motion was filed, S.S. has been voluntarily dismissed from this case, leaving PPAL and DLC as the only plaintiffs. In the course of arguing that Plaintiffs lack standing, Defendants raised concerns about IDEA exhaustion. As the court had not previously considered how the IDEA exhaustion requirement applied to PPAL and DLC, the court requested the parties submit supplemental briefing as to whether IDEA exhaustion is required before the ADA claim advanced by PPAL and DLC can be brought.
III. STANDING “Article III of the Constitution confines the judicial power of federal courts to deciding actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). As a result, “any person invoking the power of a federal court must demonstrate standing to do so.” Id. “[B]ecause standing is a prerequisite to a federal court’s subject matter jurisdiction, the absence of standing may be raised at any stage of a case.” Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016); see also Pollard v. Law Office of Mandy L. Spaulding, 766 F.3d 98, 101 (1st Cir. 2014) (“[W]hether a plaintiff has Article III standing implicates a federal court's subject-matter jurisdiction and, thus, must be resolved no matter how tardily the question is raised.”). As there has already been a motion to dismiss, Defendants have labeled their filing as a motion for judgment on the pleadings and invoke Federal Rule of Civil Procedure 12(c), rather than 12(b)(1). Generally, “‘[a] motion for judgment on the pleadings [under Rule 12(c)] is treated much like a Rule 12(b)(6) motion to dismiss,’ with the court viewing ‘the facts contained in the pleadings in the light most favorable to the nonmovant and draw[ing] all reasonable inferences therefrom.’” In re Loestrin 24 Fe Antitrust Litig., 814 F.3d 538, 549 (1st Cir. 2016) (alterations in original) (quoting PérezAcevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)). At the pleading stage, the same “plausibility standard applicable under Rule 12(b)(6)” applies to standing determinations. Hochendoner, 823 F.3d at
6

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730. As a result, “the plaintiff bears the burden of establishing sufficient factual matter to plausibly
demonstrate . . . standing to bring the action.” Id. Because “[t]he standing inquiry is both plaintiff-
specific and claim-specific,” PPAL and DLC must demonstrate they each have standing in their own
right in order to continue as plaintiffs in this case. Pagán v. Calderón, 448 F.3d 16, 26 (1st Cir. 2006).6
“The doctrine of standing is of both constitutional and prudential dimension.” Mangual v.
Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003). In order to establish standing, “a plaintiff must show
that ‘(1) he or she has suffered some actual or threatened injury as a result of the challenged
conduct; (2) the injury can be fairly traced to that conduct; and (3) the injury likely will be redressed
by a favorable decision from the court.’” Id. (quoting N.H. Right to Life PAC. v. Gardner, 99 F.3d 8,
13 (1st Cir. 1996)). While these requirements generally prevent a litigant from bringing a claim based
on harms experienced by others, under the doctrine of associational standing “an organization may
sue to redress its members’ injuries, even without a showing of injury to the association itself.”
6 Plaintiffs have argued the opposite, that they need only show that one named plaintiff has standing for the court to have subject matter jurisdiction over the entire case. However, while “[i]t is a settled principle that when one of several co-parties (all of whom make similar arguments) has standing, an appellate court need not verify the independent standing of the others,” a district court cannot ignore a standing challenge when considering a case in the first instance. Compare Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 183 (1st Cir. 1999)(ending standing analysis after concluding one appellant had standing to challenge lower court order); Horne v. Flores, 557 U.S. 433 (2009) (stating the Court need only assure itself that at least one petitioner had standing when hearing an appeal that “implicate[d] the [lower court] orders in their entirety”); Massachusetts v. E.P.A., 549 U.S. 497 (2007) (noting the Court need only find one petitioner has standing to consider appeal of a lower court order denying a petition for review of a federal administrative order); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263 (1977) (recognizing standing of individual plaintiff sufficient basis for court’s jurisdiction over appeal of lower court order without requiring court to resolve prudential questions related to associational standing of association plaintiff) with Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (stating plaintiff “bears the burden of showing that he has standing for each type of relief sought) and Pagan, 448 F. 3d at 326 (“The standing inquiry is both plaintiff-specific and claim-specific.”). Applied at this stage, the approach advocated by Plaintiffs would permit a district court to simply ignore the issue of standing in any case where at least one plaintiff clearly has standing. This result would clearly violate Article III.
.
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United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 552 (1996). Organizations seeking to establish standing “must clearly allege facts demonstrating standing; [the court] then construe[s] those facts and reasonable inferences drawn from them in plaintiffs’ favor.” Animal Welfare Inst. v. Martin, 623 F.3d 19, 25 (1st Cir. 2010).
“[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). Though the first two of these elements are required by Article III, the third element is prudential only – a court-constructed limit on the exercise of jurisdiction to prevent actions that would “fail[] to resolve the claims of the individuals ultimately interested.” Brown Group, 517 U.S. at 558. DLC additionally argues that Congress has abrogated the third element as to claims brought by protection and advocacy organizations, including DLC, created under the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq., (“PAIMI Act”).
Turning to the first two elements, the court considers whether the Amended Complaint adequately establishes that PPAL and DLC have at least one constituent with individual standing to sue and whether efforts to support the educational needs of students attending the Springfield Day School are germane to the each organization’s core purposes.7 Animal Welfare, 623 F.3d at 25. As the plaintiffs, PPAL and DLC have the burden of showing at least one constituent (1) “suffered some actual or threatened injury” that (2) “can fairly be traced” to the failure of SPS to provide the schoolbased behavioral services (“SBBS”) PPAL and DLC seek, and (3) that “injury likely will be redressed
7 For purposes of the standing inquiry, this court considers the “defined and discrete constituency” of each organization to occupy the same position as formal members. Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304, 326 (D. Mass. 2013) (citing NAACP v. Harris, 567 F. Supp. 637, 640 (D. Mass. 1983)).
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by a favorable decision from the court.” Mangual, 317 F.3d at 56 (quoting N.H. Right to Life PAC. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996). The Amended Complaint identifies two individual students who were allegedly harmed by being placed at the Springfield Public Day School: S.S. and N.D., both of whom were constituents of PPAL and DLC at the time the Amended Complaint was filed. The court finds the allegations in the Amended Complaint sufficiently assert that each of these students suffered an actual injury as a result of attending the Public Day School, they would have attended neighborhood schools had SBBS been available, and their educational needs would have been better met at neighborhood schools offering SBBS. Additionally, the involvement of both PPAL and DLC in this litigation, and its attempt to secure access to better educational services for a set of constituents, is consistent with the core purposes each organization serves.
This brings the court to the third requirement for associational standing, that the “individual members’ participation is not necessary to either the claim asserted or the relief requested.” Animal Welfare, 623 F.3d at 25. As noted above, unlike the first two requirements, this third requirement does not arise from Article III of the Constitution. Instead, the courts created this requirement to address “matters of administrative convenience and efficiency.” Brown Group, 517 U.S. at 556. Again referencing this court’s decision to deny class certification, Defendants argue this third prong weighs against PPAL and DLC establishing associational standing because the relevant harms, if any, suffered by their constituents require individualized remedies. Defendants also point to the court’s earlier ruling finding exhaustion was required and assert relief is unavailable for any constituent who has not exhausted. In response, Plaintiffs argue the relief they request can be granted without the participation of individual constituents and, therefore, this third prong is satisfied. Additionally, Plaintiffs argue that Congress abrogated application of this third prong to the DLC through statutes which authorize DLC to seek legal remedies for its constituents.
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This court’s denial of the motion for class certification followed a probing review of submissions from both parties that went well beyond the amended complaint. That review led the court to determine class certification was not appropriate because Plaintiffs had not demonstrated the members of the proposed class had suffered the same injury and a common remedy would apply to the whole class. The court also declined to certify the class because of its concerns regarding the application of the IDEA exhaustion requirement. While these conclusions raise substantive questions about the viability of the claims brought by PPAL and DLC, they do not, and should not, have a direct bearing on the threshold issue of standing. For this reason, the court assesses the third element of associational standing in the context of the allegations made in the Amended Complaint. As presented there, PPAL and DLC seek prospective relief to address an alleged problem that has caused the same harm to a group of their constituents and, therefore, does not require the participation of individual students. Viewed in this way, the court cannot conclude that the prudential concerns underlying the third element provide a basis for finding that PPAL and DLC lack associational standing.
IV. EXHAUSTION The court has addressed the IDEA exhaustion requirement in each of its previous decisions in this case, first its application to the individual claims of S.S. and then the relevance of the requirement when claims were asserted for the prospective class. Defendants’ motion raised the question of how the IDEA exhaustion requirement applies to PPAL and DLC in the context of their standing argument. As discussed above, the court disagrees with Defendants’ arguments that the general absence of exhaustion by constituents of PPAL and DLC prevents PPAL and DLC from having standing. However, as discussed in the court’s prior opinions, IDEA exhaustion, when required, is a necessary prerequisite to bringing a claim pursuant to the ADA. As S.S., the only
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constituent PPAL and DLC has ever identified as having exhausted IDEA remedies, is no longer a party to this case or a constituent of PPAL and DLC, the court finds it appropriate to consider whether the IDEA exhaustion requirement warrants entry of judgment on the pleadings. See e.g. U.S. Nat. Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 446 (1993) (“[A] court may consider an issue ‘antecedent to ... and ultimately dispositive of’ the dispute before it, even an issue the parties fail to identify and brief.”) (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)). The court, therefore, invited the parties to file supplemental briefs addressing the application of the IDEA exhaustion requirement, independent of the standing analysis.
Under the IDEA, parties must exhaust the available administrative remedies before filing a civil action under another law if the parties are “seeking relief that is also available under [IDEA].” 20 U.S.C. § 1415(l). The First Circuit has ruled the exhaustion requirement is not absolute and, therefore, it is not determinative of a court’s subject matter jurisdiction to hear a case, but rather is a condition precedent to entering federal court. Frazier, 276 F.3d at 59. As a result, where IDEA exhaustion is required, a plaintiff who has not exhausted cannot proceed with an ADA claim. See id.
When determining whether exhaustion is required in a particular case, courts have struggled to articulate a balanced analytic approach that does not undercut the exhaustion requirement and does not improperly burden litigants asserting claims under other statutes. In the ruling on class certification this court, extrapolating from the First Circuit’s ruling in Frazier, concluded that exhaustion is required in this case because the benefits that accrue from exhaustion, notably the development of an administrative record by a state agency with specialized knowledge, would assist the court’s consideration of the claim brought under the ADA, even though, as in Frazier, the exact remedy sought was not available through the IDEA administrative process. S.S. II, 318 F.R.D. at 221-22. The court considered whether an exception to the exhaustion requirement could apply in an action seeking relief for a class. Id. at 221. The court found no basis for an exception applicable
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simply because a case is framed as a class action. Id. Additionally, the court found that the underlying purposes of the exhaustion requirement, which are to ensure that prior to litigation educational agencies have an opportunity to address problems with the formulation or implementation of a student’s IEP and educational professionals create an evidentiary record, are relevant in this case. Id. at 221-22.
After this court reached the conclusion that IDEA exhaustion is required in this particular case, the Supreme Court provided additional guidance as to how courts should decide whether IDEA exhaustion is required before a claim may be litigated under the ADA. Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017). Specifically, the Supreme Court has confirmed that IDEA exhaustion is only required if the suit asserted under another statute “seek[s] relief for the denial of a FAPE, because that is the only ‘relief’ the IDEA makes ‘available.’” Id. at 752. In order to determine whether a suit seeks relief for the denial of a FAPE, the Supreme Court advises courts to “consider substance not surface,” and ask two hypothetical questions: “could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school . . . [a]nd second, could an adult at the school . . . have pressed essentially the same grievance.” Id. at 755, 56 (emphasis in original). If the answers to these hypotheticals are no, then, the Supreme Court advises, “the complaint probably does concern a FAPE” and exhaustion is required.8 Id. at 756.
8 Left unresolved by the Fry ruling is the question of whether exhaustion is required when a student complains of a violation of FAPE but seeks a remedy that cannot be provided by the IDEA administrative process, such as an award of monetary damages. In the absence of clarification of this point from the Supreme Court, this court continues to follow the approach taken by the First Circuit in Frazier, which is to require exhaustion, even if monetary damages are sought, because the ultimate determination as to the appropriateness of monetary damages will be informed by the administrative record assembled during the exhaustion of IDEA procedural remedies. Regardless, Plaintiffs here are not claiming the alleged ADA violations deprived any of their constituents of a FAPE, nor are they seeking money damages.
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Plaintiffs assert their case is an “equal access” case, rather than one seeking FAPE, yet when
these two hypotheticals are asked of the ADA claim in this case, the answer to both is clearly no.9
The court can think of no other public facility where the ADA would require provision of the range
of services Plaintiffs seek, nor can the court imagine a situation in which a school would be required
to provide such services to an adult at the school. Applying these hypothetical questions to this case
clarifies that the IDEA exhaustion requirement applies here and that a plaintiff who cannot
demonstrate IDEA exhaustion of its claim cannot state a valid claim for relief under the ADA.
PPAL and DLC argue an exception to the exhaustion requirement should be made for them
because (1) IDEA administrative remedies are available only to students’ families and local
educational authorities, not entities like PPAL and DLC, (2) any such exhaustion would be futile
9 Plaintiffs cite two cases decided since Fry in which courts found exhaustion was not required and argue for a similar outcome here. Not only are these cases from other circuits and their analysis not binding on this court, but both of those cases are distinguishable from this case in important respects. In J.S., III by & through J.S. Jr. v. Houston Cty. Bd. of Educ., the parents of a student who was removed by a paraprofessional from his classroom to an isolated area in violation of his IEP and subjected to verbal and physical abuse by that same individual sued the school district, without first exhausting under IDEA. 877 F.3d 979 (11th Cir. 2017). The Eleventh Circuit noted that the case did not “fit neatly into Fry’s hypotheticals” and found exhaustion was not required because the plaintiff had presented sufficient evidence that the student had been removed from his classroom for discriminatory reasons that had “no purpose related to his education.” Id. at 986. In this case, Plaintiffs have not challenged that students were placed at the Public Day School pursuant to IEPs which met the requirements of IDEA, meaning they provided FAPE in the LRE. Thus, the reason any student was placed at the Public Day School was directly related to the student’s education. Additionally, since neighborhood schools necessarily are less restrictive environments than the separate Public Day School, the placement of a student at the Public Day School only complied with the IDEA if it was first determined that a student could not receive FAPE in the neighborhood school, even “with the use of supplementary aids and services.” 20 U.S.C. § 1412(l). These facts also distinguish this case from the other case cited by Plaintiffs, Abraham P. v. Los Angeles Unified Sch. Dist., No. CV 17-3105-GW (FFMx), 2017 WL 4839071 (C.D. Cal. Oct. 5, 2017). In Abraham P., a disabled student was subjected to physical abuse that was allowed to continue even after the student’s parents complained and the abuse interfered with the student’s ability to access his educational program. Id. at *4. In finding plaintiff did not seek redress for failure to provide FAPE and, therefore, was not required to exhaust, the court observed that the amended complaint indicated the student was doing well and did not need additional education services, demonstrating that his suit was about damages for past discrimination rather than a remedy for a denial of FAPE. In this case, the remedy sought by Plaintiff is the provision of an array of new services necessary to allow students to receive FAPE in their neighborhood schools.
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because the relief sought is not available through the IDEA administrative process, and (3), in the case of DLC, any exhaustion requirement is abrogated for Protection and Advocacy groups seeking systemic remedies. These arguments are not persuasive because each is premised on the assumption that PPAL and DLC are, in fact, seeking systemic relief for a failure to provide services unrelated to the provision FAPE to a particular group of students. The court sees the situation differently.
In the context of this case, whether the ADA requires something more than the IDEA cannot be determined without consideration of what the IDEA requires. The IDEA sets up a detailed system for ensuring that disabled students receive individualized educational services and the exhaustion requirement ensures that courts asked to make determinations about whether a student has received FAPE in the LRE have the benefit of an administrative record assembled by educational experts. At the motion to dismiss stage, this court narrowly determined dismissal was not appropriate because a gap exists between the requirements of the IDEA and those of the ADA. The court observed that in the context of S.S., such a gap could exist only if the ADA required some support, as a reasonable accommodation, that would have enabled S.S. to attend a neighborhood school and receive FAPE, but that was not required under the IDEA. S.S. I, 146 F. Supp.3d at 424. While the court expressed some doubt as to whether such a gap could be ultimately be shown, the Amended Complaint had adequately pleaded facts from which the court could infer there were services which could be required by the ADA, but not the IDEA, that would enable S.S. to attend a neighborhood school. The administrative record from S.S.’s BSEA appeal would clearly be relevant to making such a determination.
Though S.S. is no longer a party to this litigation, the needs served by the exhaustion requirement are still relevant. As set out in the Amended Complaint, the relief sought by PPAL and DLC is closely related to questions about the provision of FAPE to their constituents. As a result,
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IDEA exhaustion is required. In the absence of such exhaustion, PPAL and DLC are unable to state a claim for relief under the ADA.10

V. CONCLUSION For the reasons discussed above, the court finds PPAL and DLC have associational standing, but grants Defendants’ Motion for Judgment on the Pleadings based on the absence of IDEA exhaustion.

It is So Ordered.

_/s/ Mark G. Mastroianni________ MARK G. MASTROIANNI United States District Judge

10 Quite possibly the court would reach a different conclusion if, for example, PPAL and DLC alleged SPS was preventing them from assisting specific families seeking to determine whether their children were receiving appropriate services or that there was a pattern or practice that was preventing a large group of students from receiving FAPE in the LRE. See Michigan Prot. & Advocacy Serv., Inc. v. Flint Cmty. Sch., 146 F. Supp. 3d 897 (E.D. Mich. 2015) (ruling IDEA exhaustion requirement inapplicable to claims brought by a protection and advocacy organization after not receiving timely responses to requests for educational records for certain students, submitted with parental consent forms); New Jersey Prot. & Advocacy, Inc. v. New Jersey Dep't of Educ., 563 F. Supp. 2d 474 (D.N.J. 2008) (ruling IDEA exhaustion not required because the claims made by statewide advocacy organizations did not seek “individual remedies necessary to make themselves or their constituents whole.”). PPAL and DLC, however, have not made such claims.
15

 
 Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u1mentD2a9t0e FFileiledd: 0088//0088//210919PagEen1troyfI4D6: 6273791
United States Court of Appeals
For the First Circuit
Nos. 18-1778 18-1813 18-1867 18-1976
THE PARENT/PROFESSIONAL ADVOCACY LEAGUE; DISABILITY LAW CENTER, INC.; M.W., a minor, by his temporary guardian, F.D., on behalf
of himself and other similarly situated students, Plaintiffs, Appellants/Cross-Appellees,
S.S., a minor, by his mother, S.Y., on behalf of himself and other similarly situated students, Plaintiff, v.
CITY OF SPRINGFIELD, MASSACHUSETTS; SPRINGFIELD PUBLIC SCHOOLS, Defendants, Appellees/Cross-Appellants,
DOMENIC SARNO, in his official capacity as Mayor of City of Springfield; SUPERINTENDENT DANIEL J. WARWICK, in his official
capacity as Superintendent of Springfield Public Schools, Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before Torruella, Lynch, and Kayatta,
Circuit Judges.

Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u2mentD2a9t0e FFileiledd: 0088//0088//210919PagEen2troyfI4D6: 6273791
Jeff Goldman, with whom Robert E. McDonnell, Michael D. Blanchard, Elizabeth Bresnahan, Matthew T. Bohenek, Morgan, Lewis & Bockius LLP, Alison Barkoff, Deborah A. Dorfman, Sandra J. Staub, Center for Public Representation, Ira Burnim, Jennifer Mathis, and Bazelon Center for Mental Health Law were on brief, for appellants/cross-appellees.
Aaron M. Panner, Matthew M. Duffy, and Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. on brief for Former U.S. Department of Education Officials, Massachusetts Advocates for Children, Massachusetts Association for Mental Health, and Mental Health America, amici curiae.
Howard Schiffman, Thomas P. DeFranco, and Schulte Roth & Zabel LLP on brief for National Disability Rights Network, American Association of People with Disabilities, and National Council on Independent Living, amici curiae.
Stephen L. Holstrom and Lisa C. deSousa, with whom Edward M. Pikula, City of Springfield Law Department, Melinda M. Phelps, and Bulkley, Richardson & Gelinas LLP were on brief, for appellees/cross-appellants.
August 8, 2019

Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u3mentD2a9t0e FFileiledd: 0088//0088//210919PagEen3troyfI4D6: 6273791

LYNCH, Circuit Judge. These consolidated appeals raise

significant questions about the overlap between Title II of the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131–12134,

and the Individuals with Disabilities Education Act (IDEA), 20

U.S.C. § 1400 et seq., about class certification in special

education litigation, and about organizations' standing to sue on

behalf of certain constituents.

The underlying suit alleges that the City of

Springfield, Massachusetts, and Springfield Public Schools (SPS)

violated Title II of the ADA by unnecessarily segregating students

with mental health disabilities in a separate and inferior school,

the Springfield Public Day School (SPDS). S.S., then an SPDS

student, brought the suit on his own behalf and on behalf of a

class of all students with a mental health disability who are or

have been enrolled at SPDS.

Two associations, the

Parent/Professional Advocacy League (PPAL) and Disability Law

Center (DLC), joined S.S. as plaintiffs. They seek injunctive and

declaratory relief, including an order that defendants provide the

class plaintiffs with "school-based behavior services in

neighborhood schools to afford them an equal educational

opportunity and enable them to be educated in neighborhood

schools."

The district court denied class certification. S.S. by

S.Y. v. City of Springfield (S.S. II), 318 F.R.D. 210, 224 (D.

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Mass. 2016). It later ruled that the associations had standing but granted the defendants' motion for judgment on the pleadings as to the associations. S.S. by S.Y. v. City of Springfield (S.S. III), 332 F. Supp. 3d 367, 379 (D. Mass 2018).
The plaintiffs' consolidated appeal challenges the district court's rulings that this suit was subject to the IDEA's exhaustion requirement and that the proposed class did not satisfy Federal Rule of Civil Procedure 23(a)'s requirements for certification. After briefly addressing a threshold issue related to the grant of a motion to intervene, we reject plaintiffs' arguments that the district court erred as to class certification. The defendants' appeal argues that the district court erred in concluding that PPAL and DLC had standing. We agree that these organizations lack standing to pursue the claims in the complaint, and we affirm the district court's grant of judgment on the pleadings as to PPAL and DLC on that ground.
I. To begin, we give background on the ADA and IDEA. We next turn to this suit's history. A. The ADA Title II of the ADA states 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
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discrimination by any such entity." 42 U.S.C. § 12132. Title II's regulations generally require a public entity to make "reasonable modifications" to its "policies, practices, or procedures" when necessary to avoid violations of Title II. 28 C.F.R. § 35.130(b)(7)(i).
Title II, as implemented by regulation, prohibits two types of discrimination relevant here. First, regulations implementing Title II prohibit inequality in services, programs, or activities provided by public entities. Public entities may not "[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that afforded others" or "[p]rovide a qualified individual with a disability with an aid, benefit or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others." Id. §§ 35.130(b)(1)(ii)-(iii).
Second, the regulations require public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." Id. § 35.130(d). "The most integrated setting" is defined as a setting that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." Id. pt. 35, app. B.
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Interpreting Title II and the integration and reasonable modification regulations, the Supreme Court held in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), that the ADA prohibits the unjustified institutionalization of people with mental disabilities. Id. at 600. The Court concluded that public entities must provide "community-based [services] for persons with mental disabilities," when "the affected persons do not oppose such" services, and the community placement "can be reasonably accommodated." Id. at 607. Cases like this one challenging the separation of individuals with disabilities under the ADA are often called Olmstead cases. B. The IDEA
The IDEA provides federal funds to assist states in educating children with disabilities "and conditions such funding upon a State's compliance with extensive goals and procedures." Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295-96 (2006) (quoting Bd. of Ed. v. Rowley, 548 U.S. 176, 179 (1982)). These conditions include the commitment to furnish a "[f]ree appropriate public education" (FAPE), 20 U.S.C. § 1412(a)(1), and to do so in the "[l]east restrictive environment" (LRE), id. § 1412(a)(5).
As defined in the IDEA, a FAPE encompasses both "special education and related services." Id. § 1401(9). "Special education" is "specially designed instruction." Id. § 1401(29).
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"Related services" are the support services -- including "psychological" and "counseling services" -- "required to assist a child to benefit from" that instruction. Id. § 1401(26)(A). A state must also provide special education and related services "in conformity with the [child's] individualized education program," or IEP. Id. § 1401(9)(D).
IEPs are "comprehensive plan[s]" developed by the child's teachers, school officials, and parents. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017). The IDEA requires that every IEP document the child's "present levels of academic achievement," identify "measurable annual goals," and outline the "special education and related services" to be given so that the child can "advance appropriately toward [those] goals." 20 U.S.C. §§ 1414(d)(1)(A)(i)(I), (IV).
Finally, every IEP must specify "the extent, if any, to which the child will not participate with nondisabled children in the regular class." Id. § 1414(d)(1)(A)(i)(V). This requirement reflects the state's obligation to educate children in the LRE, which the IDEA defines as:
(5) Least restrictive environment (A) In general To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when
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the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Id. § 1412(a)(5)(A). The IDEA also details procedures for resolving disputes between parents and schools about the content of an IEP. Parents may file a complaint with the appropriate local or state educational agency, id. § 1415(b)(6), spurring a "[p]reliminary meeting," id. § 1415(f)(1)(B)(i), which, if unsuccessful in resolving the dispute, leads to a mediation process, id. § 1415(e), and then ultimately to a formal "due process hearing," id. § 1415(f)(1)(A). Hearing officers can grant substantive relief, such as reimbursement for private school tuition or an order that a school district must offer the student an appropriate educational program. See Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370 (1985) (discussing both prospective relief and reimbursement). But relief may only be granted "based on a determination of whether the child received a [FAPE]."1 20 U.S.C. § 1415(f)(3)(E)(i). The standard for determining whether a child receives a FAPE is whether the educational program offered to the
1 For procedural violations, a hearing officer may find that a child did not receive a FAPE "if the procedural inadequacies . . . caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii).
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child is "reasonably calculated to enable [the] child to make progress appropriate in light of the child's circumstances." Endrew F., 137 S. Ct. at 1001.
In Massachusetts, the initial hearing officer's decision can be appealed to the Board of Special Education Appeals (BSEA). The general rule is that only after these procedures have been exhausted may parents seek review of IDEA claims in a civil action in state or federal court. See id. § 1415(i)(2)(A). C. The IDEA's Exhaustion Requirement
The Supreme Court first considered the interactions between the IDEA and antidiscrimination laws like the ADA in Smith v. Robinson, 468 U.S. 992 (1984). Smith held that the IDEA totally foreclosed claims asserted under statutes other than the IDEA to challenge the appropriateness of a disabled child's education. See id. at 1009.
But Congress overrode Smith in 1986 when it added an exhaustion requirement to the IDEA. The provision, at 20 U.S.C. § 1415(l), reads:
Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA's administrative] procedures . . . shall be exhausted to the
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same extent as would be required had the action been brought under [the IDEA]. Id. Under § 1415(l), a plaintiff is thus not barred from bringing claims under the ADA even if those claims allege the denial of an adequate education. However, a plaintiff bringing suit under the ADA must first exhaust the IDEA's administrative procedures if the suit is "seeking relief that is also available under [the IDEA]." Id. The Supreme Court first interpreted this key phrase in 2017, in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017).2 Fry held that a suit is subject to the IDEA's exhaustion requirement if it "seek[s] relief for the denial of a FAPE, because that is the only 'relief' the IDEA makes 'available.'" Id. at 752 (quoting 20 U.S.C. § 1415(l)); see also id. at 753-55. And, in discerning "whether a suit indeed 'seeks' relief for such a denial, a court should look to the substance, or the gravamen, of the plaintiff's complaint." Id. at 752; see also id. at 755-57. That is in contrast to analyses under other, "stricter exhaustion statute[s]" that ask "whether the suit could have sought [certain]
2 The Frys brought suit under Title II of the ADA and § 504 of the Rehabilitation Act, 29 U.S.C. § 794, for "denying [their daughter] equal access" to her elementary school by "refus[ing] to reasonably accommodate" their daughter's use of a service animal for her cerebral palsy. Fry, 137 S. Ct. at 752 (internal quotation marks omitted). The Supreme Court did not undertake an exhaustion analysis of the Frys' complaint, remanding on that question. Id. at 758-59.
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relief" or "whether [certain] remedies are available under that law." Id. at 755 (emphasis added)(internal quotation marks omitted).
Even if a court determines that a complaint seeks relief that is available under the IDEA, exhaustion is not required where it "would be futile or inadequate." Honig v. Doe, 484 U.S. 305, 327 (1988). The plaintiffs argue that two species of futility are relevant here, one to the class plaintiffs and the other to DLC and PPAL. But for reasons explained in our analysis, we reach only the argument about the class plaintiffs.
II. A. The Complaint
S.S., PPAL, and DLC filed the operative complaint in 2015.3 PPAL is an organization that advocates for improved access to services for children with a mental health disability. And DLC is designated under the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. § 10801 et seq., as the protection and advocacy system (P & A) for individuals with mental health disabilities in Massachusetts. S.S., then a high school student at SPDS, had been diagnosed with Attention Deficit and
3 What we refer to as "the complaint" is the First Amended Class Action Complaint. S.S. and PPAL filed an initial complaint in 2014 and then sought leave to amend, which was granted, allowing S.S. and PPAL, now joined by DLC, to file the First Amended Class Complaint. S.S. by S.Y. v. City of Springfield (S.S. I), 146 F. Supp. 3d 414, 422 (D. Mass. 2015).
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Hyperactivity Disorder and depression. S.S. sought to sue on behalf of a class of "[a]ll students with a mental health disability who are or have been enrolled in SPS's Public Day School who are not being educated in an SPS neighborhood school." This class, the complaint alleges, contains PPAL and DLC constituents.
The complaint alleges the following facts about Springfield's public school system. SPS, the second largest school district in Massachusetts, enrolls around 26,000 students in about fifty schools. Most of those schools are neighborhood schools -- elementary and middle schools that enroll students based on their residential addresses and high schools that enroll students through a choice program.
Within SPS, SPDS comprises three schools, an elementary, middle, and high school. SPDS operates as an "alternative [set of] schools . . . for students with social emotional behavioral disabilities." It enrolls about 230 students, each of whom has been diagnosed with a mental health disability that SPS has determined interferes with his or her learning and each of whom has an IEP that places him or her at SPDS. About 400 other students with mental health disabilities that similarly interfere with their learning attend neighborhood schools; their IEPs do not require placement at SPDS.
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The complaint alleges that both Springfield and SPS4
discriminate against the plaintiff class under Title II by
providing unequal educational services at SPDS, see 28 C.F.R.
§§ 35.130(b)(1)(i), (ii), and by denying them the opportunity to
receive educational services in the most integrated setting
appropriate to their needs, see 42 U.S.C. § 12132; 28 C.F.R.
§ 35.130(d). The complaint requests this substantive relief:
A. Order that Plaintiff S.S. may maintain this action as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. B. Order and declare that Defendants are violating the rights of S.S. and other similarly situated children under Title II of the ADA . . . and its implementing regulations. C. Preliminarily and permanently enjoin Defendants, their . . . agents, employees and assigns, and all persons acting in concert with them to provide Plaintiff S.S., PPAL and DLC constituents, and the Plaintiff class with the school-based behavior services they need to enjoy equal educational opportunity and receive educational programs and services in the most integrated setting, as required by Title II of the ADA.
The complaint defines the "essential components" of
school-based behavior services (SBBS) as:
(a) a comprehensive assessment, including determination of the purpose and triggers for the child’s behavior; (b) a school-based
4 The complaint also named Springfield's mayor and schools superintendent as defendants. But the district court dismissed these claims as "redundant" of those against the public entities. S.S. I, 146 F. Supp. 3d at 426. And the plaintiffs have not appealed that dismissal.
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intervention plan that relies on positive support, social skills training, a care coordinator, and adjustments as needed to curriculum or schedule; (c) training for school staff and parents in implementing the plan; and (d) coordination with non-school providers involved with the child. Defendants responded with a motion to dismiss, asserting several grounds, including that S.S. had failed to exhaust his administrative remedies. In denying the motion to dismiss as to the claims against Springfield and SPS,5 the district court held that S.S. had exhausted his administrative remedies before bringing this suit. S.S. by S.Y. v. City of Springfield (S.S. I), 146 F. Supp. 3d 414, 424 (D. Mass. 2015). S.S. had filed a Request for a Hearing with the BSEA asserting that his IEP violated the IDEA's FAPE and LRE requirements and raising the ADA claims in this suit. A BSEA hearing officer dismissed S.S.'s individual and classwide ADA claims for lack of jurisdiction and denied S.S.'s IDEA claim based on a finding that his IEP was reasonably calculated to offer him a FAPE. B. Motion for Class Certification The district court denied the plaintiffs' motion for class certification on alternative grounds. S.S. II, 318 F.R.D. at 224. In the district court's view, the IDEA's exhaustion
5 As already stated, the district court dismissed the claims against the individual defendants. S.S. I, 146 F. Supp. 3d at 426.
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requirement "provide[d] one basis" for doing so. Id. at 222. Writing two years before Fry, the district court concluded that, because "the members of the proposed class may achieve a remedy through an IDEA administrative hearing related to the claims raised here," that statute's exhaustion requirement "applie[d]." Id. Although S.S. had exhausted his administrative remedies, the proposed class was not limited to students who had gone through the IDEA's procedures. Id. at 221. And, the district court stated, plaintiffs "have not argued that there is an exception to the exhaustion requirement" for class actions. Id. As a result, the district court held that class certification should be denied: the complaint did not allege that all unnamed members of the class had exhausted, but the district court determined that § 1415(l) required them to do so. See id. at 222.
The district court also concluded that the plaintiffs had not satisfied Federal Rule of Civil Procedure 23(a)'s prerequisites for class certification. See id. There was no "question[] of law or fact common to the class," the district court held, and S.S. could not serve as a "typical" or "adequate[]" class representative because he had exhausted his IDEA administrative remedies while other class members had not. See id. at 223-24 (quoting Fed. R. Civ. P. 23(a)).
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C. Motion for Judgment on the Pleadings The defendants next filed a motion for judgment on the
pleadings on the claims of DLC and PPAL. They argued that the associations lacked standing to bring these claims on behalf of their constituents and, in the alternative, that the associations were subject to the IDEA's exhaustion requirement but had failed to exhaust. Although the district court found that DLC and PPAL had standing, it granted the motion. S.S. III, 332 F. Supp. 3d at 370. Writing after Fry, the district court concluded that § 1415(l) required exhaustion and that no exception relieved DLC and PPAL of their obligation to exhaust the IDEA's administrative procedures. Id. at 376-78. D. M.W.'s Intervention for Purposes of Appeal and the Parties'
Appeal and Cross-Appeal While the motion for judgment on the pleadings was
pending in the district court, S.S. turned eighteen and withdrew from the suit.6 M.W., a former SPDS student who does not attend a neighborhood school, asked the district court for permission to intervene solely for purposes of appealing the ruling on the motion for class certification. The district court granted the motion.
6 Simultaneous with S.S.'s withdrawal, another SPDS student who had exhausted IDEA administrative remedies sought to intervene in the district court case and in the plaintiff's petition to appeal the denial of class certification to the First Circuit. This student's motions were withdrawn before they were acted on.
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M.W. then appealed the district court's denial of class certification. PPAL and DLC appealed the judgment against them. Springfield and SPS cross-appealed the district court's ruling that PPAL and DLC had standing and its grant of M.W.'s motion to intervene for purposes of appeal.
III. We first address a threshold issue raised in defendants' cross-appeal: did the district court abuse its discretion in granting M.W.'s motion to intervene for purposes of appealing the denial of class certification? See Peaje Investments LLC v. García-Padilla, 845 F.3d 505, 515 (1st Cir. 2017) (reviewing disposition of motion to intervene for abuse of discretion). We see no abuse of discretion. The district court relied on United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977), in concluding that M.W.'s motion to intervene was timely and appropriate. In McDonald, the Supreme Court endorsed the grant of a motion like the one here -- to intervene for purposes of appealing an order denying a motion for class certification. Id. at 387, 396. The motion in McDonald had been filed by a member of the proposed class within the period for appealing the entry of final judgment. Id. at 390. The same is true here: M.W., a member of the proposed class, filed the motion to intervene for purposes of appealing the class certification order fifteen days after the district court entered its final order granting the
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motion for judgment on the pleadings; fifteen days is within the time period for filing an appeal under Federal Rule of Appellate Procedure 4. See id.; see also Fed. R. App. P. 4(a)(1)(A) (allowing thirty days to file a notice of appeal).
The defendants' counter-arguments are misplaced. The defendants object that M.W.'s intervention is "[i]nappropriate" because he has not exhausted his IDEA administrative remedies and is therefore "unsuitable to represent the class in any capacity." But M.W. seeks to appeal the district court's ruling refusing to certify a class including persons who had not exhausted IDEA remedies. And so M.W.'s failure to have exhausted cannot make him an inappropriate appellant of that ruling. See McDonald, 432 U.S. at 394-95 ("[I]t would be circular to argue that [an] unnamed member of the putative class was not a proper party to appeal, on the ground that her interests had been adversely determined in the trial court."). Defendants' insistence that "M.W. is not an adequate class representative and whether one may arise is wholly speculative" similarly misses the point. M.W. is a suitable party to appeal from the district court's denial of class certification because M.W. is a member of the proposed class; those interests would be impaired absent intervention given S.S.'s decision to
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withdraw as named plaintiff. See id. at 394; Fed. R. Civ. P.
24(a). M.W.'s appeal is properly before us.7
IV. We turn now to M.W.'s appeal. M.W. first challenges the
district court's conclusion that § 1415(l)'s exhaustion rule
attached here, and the parties appear to argue that the exhaustion
issue is at the heart of this case. Our exhaustion analysis, as
described below, directly pertains to our decisions on class
certification and associational standing. Applying Fry for the
first time in this circuit, we conclude that the complaint "seek[s]
relief that is also available" under the IDEA. 8 20 U.S.C.
§ 1415(l). We then turn directly to the issue of class
certification.
7 M.W., a minor, moved to intervene and initially brought this appeal by his parents, L.N. and A.N. After oral argument, plaintiffs moved to substitute F.D. as M.W.'s representative. The motion explained that, following L.N.'s death just before oral argument in this court, F.D. and A.N. filed competing petitions for guardianship of M.W., and F.D. was granted temporary guardianship of M.W. We granted the motion to substitute F.D. for so long as F.D. is authorized to be M.W.'s general guardian under state law. See Fed. R. Civ. R. 17(c)(1)(A); Fed. R. App. P. 43(a), (b).
8 Our review of the district court's exhaustion ruling is de novo. This is true whether we treat the exhaustion ruling as a matter of class certification or, as the parties do in their briefs, as an independent issue. Motions to dismiss and legal rulings embedded in class certification decisions are both reviewed de novo. García-Rubiera v. Calderón, 570 F.3d 443, 460 (1st Cir. 2009) (citing Tardiff v. Knox Cty., 365 F.3d 1, 4 (1st Cir. 2004)).
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A. The Complaint "Seek[s] Relief that is Also Available Under" the IDEA Fry was decided after the district court's class
certification order, and M.W. argues that Fry made clear that the "IDEA exhaustion rule does not apply here." We now clarify that § 1415(l), as interpreted in Fry, subjects the type of ADA claim being made here to that exhaustion rule.9
When faced with a complaint brought under the ADA against a public school, Fry instructs, a court should determine whether the gravamen of the complaint "concerns the denial of a FAPE" -- in which case § 1415(l) requires exhaustion -- or "instead addresses disability-based discrimination" -- in which case § 1415(l)'s rule does not apply. 137 S. Ct. at 756. This distinction is grounded in the "diverse means and ends of the statutes." Id. at 755. While "the IDEA guarantees individually tailored educational services, . . . Title II . . . promise[s] non-discriminatory access to public institutions." Id. at 756.
Fry recognized that "[t]he same conduct might violate" both the ADA and the IDEA. Id. "But still," it stated, "the statutory differences . . . mean that a complaint brought [against a school] under Title II . . . might" nevertheless be free from
9 Although we, following Fry, "sp[eak] in terms of the 'complaint,'" our conclusion, as our analysis will make clear, would be the same if the inquiry were "claim-by-claim." Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 132 (6th Cir. 2017) (noting ambiguity about whether Fry's inquiry is claim-specific).
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the IDEA's exhaustion requirement if it "seek[s] relief for simple discrimination, irrespective of the IDEA's FAPE obligation." Id. On inspection, the complaint here in essence contests the provision of educational services secured by the IDEA; its gravamen is not "simple discrimination."
On its surface, the complaint pleads disability-based discrimination: it alleges that the defendants are violating the ADA by unnecessarily segregating students with mental health disabilities in a separate and unequal educational program. And the complaint never uses the term FAPE. Yet, the crux of the complaint is that the defendants failed to provide the educational instruction and related services that the class plaintiffs need to access an appropriate education in an appropriate environment. That is not a claim of simple discrimination; it is a claim "contesting the adequacy of a special education program." Id. at 755.
The complaint's gravamen is also revealed in the legal allegations. The sole count of the complaint alleges that the defendants are "[d]enying" students the "opportunity to receive educational programs and services in the most integrated setting appropriate to their needs." And Count I also alleges that the school system is "[d]enying" students the "opportunity to . . . benefit from educational services." These allegations track the language of the ADA's regulations, see 28 C.F.R. §§ 35.130(b),
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(d), but they are nonetheless claims about obligations under the IDEA to educate students in the regular classroom with their nondisabled peers "[t]o the maximum extent appropriate," 20 U.S.C. § 1412(a)(5)(A), and to offer students an appropriate educational benefit, see Endrew F., 137 S. Ct. at 1001. These allegations are, in great part, simply another way of saying, in IDEA terms, that the school system has not provided the necessary special educational services to allow students to be educated in the LRE. See, e.g., C.D. by & through M.D. v. Natick Pub. Sch. Dist., 924 F.3d 621, 630 (1st Cir. 2019). Indeed, here, the members of the class were placed in SPDS by their IEPs, which, as we outlined above, must provide an appropriate education and must comport with the IDEA's LRE requirement.
Concretely, it is revealing that S.S. initially "invoked the IDEA's formal procedures to handle [his] dispute." Fry, 137 S. Ct. at 757. The IDEA claims raised in S.S.'s due process complaint and ultimately adjudicated by the BSEA concern the adequacy of the special education services provided to S.S. and the appropriateness of his placement. When S.S. filed this suit in federal court, he dropped the IDEA claims, but the essence of his grievance did not shift.
Nor do the facts here show "that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else
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entirely." Id. To the contrary, the plaintiffs emphasize that they do not concede that any of the unnamed class plaintiffs were receiving a FAPE in the LRE. In Fry, the Frys and the school district agreed that the district was providing a FAPE. Id. at 752. To the Supreme Court, this fact signaled that the Frys' complaint sought relief for "infringe[ment] on [the child's] right to equal access -- even if [the school's] actions complied in full with the IDEA's requirements." Id. at 758. The plaintiffs' suit cannot be similarly isolated from the special education services guaranteed by the IDEA.
To reinforce this point that the relief plaintiffs seek cannot be isolated from relief available under the IDEA, consider an example. A student sues her school under an antidiscrimination statute alleging that a teacher struck her "out of animus or frustration." Id. at 756 n.9. Even assuming that the student has an IEP and that striking the student could violate the IEP, the "substance" of this suit "is unlikely to involve the adequacy of special education -- and thus is unlikely to require exhaustion." Id. "A telling indicator of that conclusion," Fry explained, is that the same suit could be filed in contexts not covered by the IDEA. Id. That is, "a child could file the same kind of suit against an official at another public facility for inflicting such physical abuse -- as could an adult subject to similar treatment by a school official." Id.
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The plaintiffs argue that a suit like theirs could be filed in contexts where "there is no FAPE obligation." Id. at 756. They liken their suit to Olmstead, which involved ADA claims of unnecessary segregation in medical institutions, not schools. See 527 U.S. at 593. But the plausibility of bringing an Olmstead suit against another public entity does not indicate that this suit concerns simple discrimination. Olmstead claims concern whether the defendant public entity provides proper "treatment," accommodations, and placements. Id. at 607. And in the school context, a challenge to a student's treatment, services, accommodations, and placements is a challenge to the appropriateness of an educational program. See 20 U.S.C. § 1401(26) (describing the services that may compose an educational program).
Other circuits have similarly concluded that complaints "seek[] relief" available under the IDEA when alleging that discriminatory treatment resulted in the denial of an adequate education or in an inappropriate placement. For example, Wellman v. Butler Area School District, 877 F.3d 125 (3d Cir. 2017), required exhaustion of claims brought under the ADA, the Rehabilitation Act, and § 1983 alleging that a school failed to provide academic and other accommodating services to a student after he sustained a head injury. Id. at 135. And claims that schools isolated or separated disabled students have been
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subjected to IDEA exhaustion where those claims allege that the effects of the isolation or separation were educational.10 So, exhaustion was required in J.M. v. Francis Howell School District, 850 F.3d 944 (8th Cir. 2017), of claims that a school's "use of isolation and physical restraints failed to provide proper 'sufficient "supportive services" to permit [J.M.] to benefit from . . . instruction,' and ultimately 'denied [J.M.] . . . the benefits of public education.'" Id. at 949 (quoting Fry, 137 S. Ct. at 748-49, 757).
Resisting the conclusion that their complaint seeks relief that is available under the IDEA, the plaintiffs emphasize that "the fact that a school has provided a FAPE in the LRE does not preclude a claim of unlawful segregation under the ADA." And they similarly state that the IDEA, unlike the ADA, does not require equal educational opportunity. But the observation that the statutes are "independent" and sometimes diverge does not help the plaintiffs. More significant for our purposes is that the statutes sometimes overlap.11 In this case, that overlap is such
10 The district court cases on which the plaintiff relies are distinguishable at least on this ground: the alleged effects of the physical abuse and isolation were not educational. See Abraham P. v. Los Angeles Unified Sch. Dist., No. CV 17-3105, 2017 WL 4839071 (C.D. Cal. Oct. 5, 2017); GM ex rel Mason v. Lincoln Cty. Sch. Dist., No. 6:16-CV-01739-JR, 2017 WL 2804996, (D. Or. Apr. 21, 2017), report and recommendation adopted, No. 6:16-CV01739-JR, 2017 WL 2804949 (D. Or. June 28, 2017).
11 Tellingly, the plaintiffs accuse the district court of
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that, in pleading what are on the surface ADA claims, the plaintiffs' complaint in substance "seek[s] relief that is also available under" the IDEA. We repeat that our conclusions about exhaustion are relevant to our class certification and associational standing analyses.
We address the plaintiffs' alternative argument that, in an IDEA suit seeking systemic relief, no plaintiff need exhaust because such exhaustion would be futile. The plaintiffs assert that this class action alleges "systemic failures."
Other circuits have defined an exception to the IDEA's exhaustion rule for "systemic" suits. But, to fall under that exception, the alleged violations must be "truly systemic . . . in the sense that the IDEA's basic goals are threatened on a systemwide basis." Hoeft v. Tuscon Unified Sch. Dist., 967 F.2d 1298, 1305 (9th Cir. 1992). For example, the exhaustion requirement has been relaxed or waived in suits alleging systemwide violations of the processes for identifying and evaluating students with disabilities. See DL v. D.C., 713 F.3d 120, 124 n.4 (D.C. Cir. 2013); J.G. v. Bd. of Educ. of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987) (alleging systemwide failures at
"limit[ing]" or "restrict[ing]" the ADA's integration and equal access mandates by requiring IDEA exhaustion here. Implicit in this argument is an admission that a complaint alleging violations of the ADA could in theory also allege violations of the FAPE and LRE requirements.
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multiple stages of the IDEA's processes for evaluating and placing students in special education). Suits labeled "systemic" also tend to "challenge[] policies or practices," or administrative failures, "at the highest administrative level." Hoeft, 967 F.2d at 1305; see also J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 114 (2d Cir. 2004); cf. Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1095 (1st Cir. 1989) (stating that exhaustion may not be required for review of such policies if they present "a pure matter of law" (quoting Ezratty v. Comm. of P.R., 648 F.2d 770, 774 (1st Cir. 1981)).
The plaintiffs' claims are not "systemic" in the sense contemplated by any such exception. A finding that one student with a certain type and degree of mental health disability should have been mainstreamed would not mean that another student with a different type, or even just a different degree, of mental health disability should have received the same services or been mainstreamed. And, as we will explain further below in our consideration of commonality, plaintiffs do not challenge an identifiable, uniform system-wide policy "enforced at the highest administrative level." Hoeft, 967 F.2d at 1305. In sum, even if this court were to recognize a "systemic" claims exception to the IDEA's exhaustion requirement, this case would not fall under such an exception. So we need not, and do not, decide whether to adopt such an exception in this circuit.
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B. Class Certification The district court denied class certification on both
Rule 23 and exhaustion grounds. We deal with both. First,
plaintiffs' failure to satisfy Rule 23(a)'s commonality
requirement provides a basis for affirming the denial of class
certification.12 See García-Rubiera v. Calderón, 570 F.3d 443,
460 (1st Cir. 2009) (noting that denials of class certification
are reviewed for abuse of discretion).
Rule 23(a)(2) makes the identification of "questions of
law or fact common to the class" a prerequisite for class
certification.13 Fed. R. Civ. P. 23(a)(2). A question is common
if it is "capable of classwide resolution -- which means that
12 We need not address plaintiffs' other arguments that the district court erred in holding that the class failed Rule 23(a)'s adequacy and typicality requirements and in implying that the plaintiffs do not "seek relief appropriate under Rule 23(b)(2)."
13 Rule 23(a) provides: (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).
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determination of its truth or falsity will resolve an issue that
is central to the validity of each one of the claims in one stroke."
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Under
that definition, the Supreme Court explained in Wal-Mart, what
really "matters to class certification . . . is not the raising of
common 'questions'" as much as "the capacity of a classwide
proceeding to generate common answers apt to drive the resolution
of the litigation." Id. (alteration in original) (emphasis in
original) (quoting Richard A. Nagarenda, Class Certification in
the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
Those common answers typically come in the form of "a particular
and sufficiently well-defined set of allegedly illegal policies
[or] practices" that work similar harm on the class plaintiffs.14
Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014).
14 Plaintiffs agree with our basic account of the law. The cases plaintiffs cite each involved a definable policy or practice imposed by a single entity or a small group of actors; these features facilitated the formulation of questions apt for class resolution. See Parsons, 754 F.3d at 678 (seeing sufficient commonality where "either each of the policies and practices is unlawful as to every inmate or it is not"); Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426, 440 (7th Cir. 2015) (finding requisite commonality where "uniform criteria and [a] single-decision maker" allegedly unlawfully closed schools); Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 114 (4th Cir. 2013), cert. denied, 134 S. Ct. 2871 (Mem.) (2014) (reversing district court's denial of class certification because the complaint alleged four company-wide policies that could be driving the alleged discrimination); Yates v. Collier, 868 F.3d 354, 363 (5th Cir. 2017) (affirming class certification where district court found that heat in a prison was so excessive that it was
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Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u3m0ent 2D9a0te Filed:0088/0/088/1/2901P9ageE3n0troyfI4D6: 6273791
Consistent with this standard, in class actions relating to special education (which are usually brought under the IDEA), plaintiffs can satisfy Rule 23(a)'s commonality requirement by identifying a uniformly applied, official policy of the school district, or an unofficial yet well-defined practice, that drives the alleged violation.15 See, e.g., DL, 713 F.3d at 131; Jamie S., 668 F.3d at 498.
So, for example, classes have been certified under the IDEA to challenge: (1) a school district's policy, called "upperlevel transfer," of automatically moving students who had aged out of autism support classrooms at one school to another school, without involving the students' IEP teams, P.V. ex rel. Valentin v. Sch. Dist. of Phila., 289 F.R.D. 227, 229 (E.D. Pa. 2013); and (2) a district's policy of delaying the start of services offered in IEPs, like speech therapy, until two weeks into the school year, R. A-G ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., No.
constitutionally impermissible as to all individuals). The same is true for the case cited in their Rule 28(j) letter. See Brown v. D.C., No. 17-7152, 2019 WL 2895992, at *1082 (D.C. Cir. July 5, 2019) (seeing sufficient commonality where "common proof will establish whether the District's plan is 'comprehensive' and 'effectively working'"). Here, in contrast, as we are about to explain, the plaintiffs have not identified a common policy or practice driving the alleged wrongdoing.
15 The commonality standard might also be satisfied in some cases by certifying sub-classes. See, e.g., Mark C. Weber, IDEA Class Actions After Wal-Mart v. Dukes, 45 U. Tol. L. Rev. 471, 498-500 (2014). But that is not a viable option here.
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Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u3m1ent 2D9a0te Filed:0088/0/088/1/2901P9ageE3n1troyfI4D6: 6273791
12-CV-960S, 2013 WL 3354424, at *11 (W.D.N.Y. July 3, 2013), aff'd sub nom. R.A.G. ex rel. R.B. v. Buffalo City Sch. Dist. Bd. of Educ., 569 F. App'x 41 (2d Cir. 2014). In these examples, it is easy to see how the policies anchor common questions -- does "upper-leveling" or delaying the start of services violate the IDEA? -- the answers to which could "resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart, 564 U.S. at 350. In each example, the harm to the class members is (in part) that the policy precludes, across-the-board, the individualized assessments and services that the IDEA requires and that harm is likely to have similar causes (the policy) and effects (denial of services appropriate to that individual student) across the class. See R. A-G ex rel. R.B., 2013 WL 3354424, at *10 (relying on similar reasoning in certifying an IDEA class).
Identification of an unofficial yet well-defined practice (or set of practices) that is consistently and uniformly applied might also satisfy the commonality prerequisite. See, e.g., DL, 713 F.3d at 131 (defining such practices); Jamie S., 668 F.3d at 498 (similar). But, in a suit like this one challenging hundreds of individualized decisions made in a decentralized environment, satisfying the commonality requirement in this way requires proof of some "common mode of exercising discretion." Wal-Mart, 564 U.S. at 356.
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Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u3m2ent 2D9a0te Filed:0088/0/088/1/2901P9ageE3n2troyfI4D6: 6273791
The plaintiffs say that they have satisfied this standard by offering "evidence that Springfield engages in common practices of disability discrimination and that those practices create harms common to the children of the proposed class." Plaintiffs frame the "question[] of law . . . common to the class," Fed. R. Civ. P. 23(a)(2), as: "whether Springfield discriminates against the class, in violation of the ADA, by failing to provide SBBS in neighborhood schools and instead placing them in the inferior Public Day School where they are segregated and deprived of educational opportunities equal to those provided to their peers without a disability." Searching for an answer to that question able to drive the resolution of the litigation, plaintiffs point to the report of their expert, Dr. Peter Leone. They characterize Dr. Leone's report as finding the following: (1) "that Springfield made common (incorrect) assumptions about the class members and offered them a common set of (insufficient) services;" (2) "that all the children whose files he reviewed could successfully attend neighborhood schools if appropriate services were provided;" and (3) "that the quality of education in the Public Day School -- for every child there -- was markedly inferior to the quality of education the children in the potential class would have received in neighborhood schools."
The problem with the plaintiffs' reliance on Dr. Leone's report is that the report claims to find a pattern of legal harm
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common to the class without identifying a particular driver -- "a uniform policy or practice that affects all class members" -- of that alleged harm. DL, 713 F.3d at 128 (explaining that this type of evidence is insufficient to satisfy commonality). Similar problems were fatal to the evidence presented by the proposed class in Wal-Mart. There, the plaintiffs alleged that female employees of Wal-Mart had "suffered a Title VII injury" apt for class resolution, Wal-Mart, 564 U.S. at 350, but the Supreme Court held that the commonality requirement was not satisfied because plaintiffs had offered no "glue holding the alleged reasons" for the alleged Title VII violations together, id. at 352. Significantly, Wal-Mart managers were given discretion to make employment decisions about individual employees. See id. at 343. And the Supreme Court found it "quite unbelievable that all managers would exercise their discretion in a common way without some common direction." Id. at 355. Plaintiffs identified no common, official policy or direction, and the Supreme Court held that the plaintiffs' statistical and anecdotal evidence did not prove a "common mode of exercising discretion." Id. at 356; see also id. at 356-58.
Here, the plaintiffs do not, in Dr. Leone's report or elsewhere, allege that a particular, official SPS policy violated the ADA. Indeed, basic facts would belie a claim that SPS had a uniform policy governing the placements and services of students
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with behavioral disabilities: it is telling that SPS educates a larger number of students with behavioral disabilities in neighborhood schools than it does in SPDS. And it is revealing that some neighborhood schools offer support programs for students with behavioral disabilities. See S.S. II, 318 F.R.D. at 215 (describing the Social Behavioral Support (SEBS) program and the Positive Behavioral Interventions and Supports (PBIS) program).
Nor does Dr. Leone's report claim that individual IEP teams exercised discretion in a common manner. For his study, Dr. Leone scrutinized the materials of twenty-four individual students enrolled at SPDS and 130 IEPs of other individual SPS students with behavioral difficulties. His study yielded no evidence that SPS places students at SPDS using some method, such as boilerplate IEPs, that would suggest a "common mode of exercising discretion."16 Wal-Mart, 568 U.S. at 356.
Absent such a common driver, answering the plaintiffs' suggested question -- does the failure to provide SBBS result in
16 Dr. Leone's report also does not "raise any inference that all the individual, discretionary" decisions that make up the class violated the law. Wal-Mart, 564 U.S. at 358. Such an inference might satisfy commonality. Id. Defendants moved to exclude or limit Dr. Leone's testimony because "the methodologies used and opinions offered by Leone suffer from a host of methodological flaws." The district court declined to rule on this motion, deeming it moot once class certification had been denied. S.S. II, 318 F.R.D. at 224. Defendants have not appealed this ruling, so we do not evaluate Dr. Leone's methodology. Instead, we see Dr. Leone's evidence as insufficient in volume and nature to raise such an inference.
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violations of the ADA? -- requires individualized determinations which defeat commonality. See Jamie S., 668 F.3d at 498 (concluding that the proposed common question "must be answered separately for each child based on individualized questions of fact and law, and the answers are unique to each child's particular situation"); see also DL, 713 F.3d at 128 (stating that "claims appear to be based on multiple, disparate failures to comply with the [District's] statutory . . . obligations rather than a truly systemic policy or practice which affects them all" (first alteration in original) (quoting Jamie S., 668 F.3d at 504-05)). For one, whether a given student's placement at SPDS violates the ADA by unlawfully segregating the student or by providing unequal educational benefits will depend on that one student's unique disability and needs. And whether the failure to provide SBBS is the cause of any ADA violations will also depend on whether SBBS would be effective for a particular child. Yet, importantly, as the district court explained, "the term SBBS was created for this litigation," and does not "refer[] to a single program that has been formally studied and found effective for students like those in the proposed class." S.S. II, 318 F.R.D. at 216. On the evidence offered by plaintiffs, then, the question -- does the failure to provide SBBS violate the ADA? -- is likely to yield individualized rather than common answers. The district court
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thus did not abuse its discretion in denying class certification for lack of commonality.
Next, the district court held that all class members must exhaust before forming a class, "[s]ince the members of the proposed class may achieve a remedy through an IDEA administrative hearing related to the claims raised here." S.S. II, 318 F.R.D. at 222. We do not go so far. Plaintiffs argue that we should adopt a rule that no one other than the class representative is required to exhaust. The school system says that we should adopt a rule that all class members must exhaust. We decline to do either here.
As to the plaintiffs' argument, there are simply too many factual variations, and the relief sought is too broad, to say here that only the class representative must exhaust. 17 Plaintiffs do not say if any members of the putative class have exhausted their IDEA remedies, save for S.S. Again, the putative class is "[a]ll students with a mental health disability who are or have been enrolled in SPS's Public Day School who are not being educated in an SPS neighborhood school." Surely, relevant facts
17 Although M.W. has not exhausted, we nevertheless address the scenario of a class representative who has exhausted because S.S, who did exhaust, was the class representative at the time of the district court's ruling. This moots the plaintiffs' argument that "it would be appropriate to allow Plaintiff a reasonable period of time to identify a different replacement class representative" who has exhausted.
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about the affected students -- such as the type and degree of mental health disability -- differ substantially across this group, and accordingly the administrative processes and results might differ substantially as well. Adoption of the plaintiffs' position that only a single class representative need exhaust before going forward with a class action would undermine the broader purposes of the exhaustion requirement. We must respect, as a general matter, "the notion, grounded in deference to Congress' delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer." McCarthy v. Madigan, 503 U.S. 140, 145 (1992), superseded by statute on other grounds, as recognized in Booth v. Churner, 532 U.S. 731, 740 (2001). On the facts pled and the claims made and without more, we cannot accept the argument that only the class representative need exhaust, which would render the exhaustion requirement nearly meaningless here.
In several cases cited by the plaintiffs, the suits were attempting to challenge what were characterized as a policy or practice. See Handberry v. Thompson, 446 F.3d 335, 343 (2d Cir. 2006) ("IDEA exhaustion in the instant case is excused under the futility exception for challenges addressing systemic issues."); Hoeft, 967 F.2d at 1305 (considering whether violations were "truly
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systemic").18 These cases do not stand for the much broader proposition that when, as here, no common policy or practice is plausibly challenged, only the class representative must exhaust. Further, in Hoeft, the Ninth Circuit referred to "representative plaintiffs," in the plural, as part of the prerequisite for "classwide judicial intervention." Id. at 1309. As to cases concerning actions under Title VII, plaintiffs there challenged "any policy, practice, custom or usage," Albemarle Paper Co. v. Moody, 422 U.S. 405, 408 (1975), or "employment practices," Lewis v. City of Chi., 560 U.S. 205, 208 (2010). Further, Congress had expressly "ratified this construction of [Title VII]" in the specific context of the award of backpay to a class member who had not exhausted. Albemarle Paper, 422 U.S. at 414 n.8. Albemarle did not create a general rule for all class actions, across all statutory contexts; the plaintiffs read this case far too broadly.
Our approach is similar to that of the Tenth Circuit in Association for Community Living in Colorado v. Romer, 992 F.2d 1040 (10th Cir. 1993), which the plaintiffs cite. "[W]e do not hold that every plaintiff in a class action must exhaust the IDEA's
18 The same is true for the published district court cases cited by the plaintiffs, which they acknowledge address systemic issues. See T.R. v. Sch. Dist. of Phila., 223 F. Supp. 3d 321, 330 n.7 (E.D. Pa. 2016) (addressing "systemic deficiencies"); L.M.P. ex rel. E.P. v. Sch. Bd. of Broward Cty., Fla., 516 F. Supp. 2d 1294, 1300 (S.D. Fla. 2007) (addressing alleged "systemic violations").
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administrative remedies" in every conceivable IDEA case. Id. at 1045 (emphasis added). Perhaps in some cases, exhaustion of some number of truly representative claims would suffice for a class action to go forward, presuming the other requirements for class certification were met. And we think it possible that, on a particular set of facts and claims, all class members would indeed have to exhaust. Here, the plaintiffs do not offer us any argument in this area except that it suffices for a single class representative to exhaust. Accordingly, we deem as waived any argument about the greater-than-one number and the type(s) of class members who would need to exhaust for a proper class action on these facts. See Landrau–Romero v. Banco Popular de P.R., 212 F.3d 607, 616 (1st Cir. 2000) ("It is well settled that arguments not raised in an appellant's initial brief are waived."). We need not venture further into this area, then, as we decide only the case and arguments in front of us. Our conclusion that exhaustion by a single plaintiff does not suffice here supports our holding on the denial of class certification.
V. We now turn to the appeals from the district court's order granting judgment on the pleadings for Springfield and SPS on DLC and PPAL's claims. Recall that the district court held that DLC and PPL have standing but dismissed their claims for failure to exhaust. See S.S. III, 332 F. Supp. 3d at 370. Our
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Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u4m0ent 2D9a0te Filed:0088/0/088/1/2901P9ageE4n0troyfI4D6: 6273791
review of the district court's order is de novo. See Doe v. Brown Univ., 896 F.3d 127, 130 (1st Cir. 2018). We must rely only on the facts in the complaint and view those in the light most favorable to the plaintiffs. See id.
PPAL and DLC seek to bring this suit on behalf of "PPAL and DLC constituents," whom the complaint alleges are harmed in the same ways as S.S. and the proposed "Plaintiff class." The complaint alleges that all children with mental health disabilities are PPAL's constituents and that all individuals with mental illnesses are DLC's constituents. PPAL and DLC thus seek to sue on behalf of a group of students coextensive with the proposed class (although their constituent groups are far broader than that purported class).19 We affirm the district court's grant of judgment on the pleadings for defendants on the ground that PPAL and DLC lack standing.
To establish standing under Article III of the Constitution, a plaintiff must show injury that can be fairly traced to the challenged conduct and that is likely to be redressed by a favorable decision. See, e.g., Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003). These requirements ensure that plaintiffs have a stake in the outcome that is sufficiently
19 We do not engage in an analysis of whether there are any possible divergent interests among the constituents which might undermine standing.
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concrete and personal to maintain a justiciable case or

controversy. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.

555, 559-60 (1992).

"Even in the absence of injury to itself, an association

may have standing solely as the representative of its members."

Warth v. Seldin, 422 U.S. 490, 511 (1975). In such a suit, to

satisfy the Constitution's requirements, the association must show

that its members have an injury "that would make out a justiciable

case had the members brought suit." Id.; see also United Food &

Commercial Workers Union v. Brown Grp., Inc., 517 U.S. 544, 555–

56 (1996) (discussing the constitutional nature of this

requirement). But the inquiry does not end there. Prudential

concerns often bar a third party from suing on behalf of others

who choose not to sue.20 See, e.g., United Food, 517 U.S. at 556;

Flast v. Cohen, 392 U.S. 83, 99 n.20 (1968) ("[A] litigant will

ordinarily not be permitted to assert the rights of absent third

parties.").

Representative standing is inappropriate for

prudential reasons, for example, if "the nature of the claim and

20 Although the Supreme Court has said that certain prudential standing doctrines may be "in some tension with . . . the principle that a federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging," Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014) (internal quotation marks omitted) (revising the "zone of interests" test and bar on "generalized grievances"), the Court's cases discussing the prudential limits on third-party suits remain good law.

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of the relief sought" requires the participation of individual members. Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977).
The defendants do not dispute that two students identified in the complaint, S.S. and N.D., are constituents of PPAL and DLC who would have individual standing were they to bring suit. The defendants argue that this showing is insufficient to satisfy the Constitution's minimum requirements because PPAL and DLC are constituent-based organizations, rather than associations made up of members who have control over governance.21 Even assuming that DLC and PPAL can show a justiciable case or controversy, they cannot bring suit for the prudential reasons we are about to outline.
As a general prudential matter, the failure to exhaust by members of the proposed class (i.e., those students who had not gone through the IDEA's administrative procedures) cuts against standing for both DLC and PPAL. Hundreds of students cannot sue
21 We need not resolve this argument by defendants. We note nonetheless that other circuits have rejected this argument as to P & As like DLC, based on statutorily mandated structural and governance features of P & As. See Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1111-13 (9th Cir. 2003); Doe v. Stincer, 175 F.3d 879, 885-86 (11th Cir. 1999). Further, PPAL fails to plead in the complaint that it has similar features. See Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675 F.3d 149, 159 (2d Cir. 2012) (concluding that the record did not plausibly allege that an organization could be deemed a membership organization for standing purposes).
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individually here without IDEA exhaustion, as we have explained above, and so there is no clear reason why the organizations should be able to essentially press those students' claims in the aggregate without that exhaustion. Put another way, it would not make sense to allow the organizations here to escape the exhaustion requirement for the students they are purportedly representing. Otherwise, associational standing in this type of suit would be inconsistent with the Congressional requirement of exhaustion in the IDEA, 20 U.S.C. § 1415(l), and indeed an easy way to circumvent it, which we have cautioned against in a range of contexts, see, e.g., Roman-Martinez v. Runyon, 100 F.3d 213, 220 (1st Cir. 1996) ("To hold otherwise would allow appellant to circumvent the exhaustion requirement . . . ."). After all, in associational standing we consider in part "administrative convenience and efficiency," which could be undercut in allowing organizations to make an end run around the IDEA's exhaustion requirement in a case like this. United Food, 517 U.S. at 557.
We continue with DLC in particular. "[C]ongress may abrogate" prudential "impediment[s]" to representative suits. United Food, 517 U.S. at 558. And the plaintiffs argue that Congress has done so here for DLC. In PAIMI, Congress authorized P & As like DLC to "pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness." 42 U.S.C. § 10805(a)(1)(B). By authorizing it
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Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u4m4ent 2D9a0te Filed:0088/0/088/1/2901P9ageE4n4troyfI4D6: 6273791
to sue on behalf of people with mental illness, DLC says, Congress removed all prudential barriers to suits, including this one, that DLC might bring on behalf of its constituents. We disagree.
We do not see in the text of this statute any indication that Congress abrogated consideration of the prudential concerns present here or that Congress meant to authorize DLC to bring this particular type of suit. See Mo. Prot. & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803, 810 n.7 (8th Cir. 2007) ("Congress has not abrogated prudential standing requirements by expressly authorizing this type of global challenge to [public] programs absent the participation of individuals seeking redress of specific injuries."). As discussed, DLC seeks to sue on behalf of hundreds of children who have not chosen to sue or even to pursue related administrative remedies. The complaint, as we have explained in our analysis of exhaustion and commonality, concerns multiple facets of each child's special education program. The suit thus raises concerns about representativeness. And, in its scale and complexity, the suit poses challenges of judicial administration and efficiency not present in more run-of-the-mill proceedings that Congress might have envisioned.22 See United
22 We agree that there are suits DLC can bring on behalf of individuals with mental illness; we hold, more narrowly, that this is not such a suit. Another provision buttresses this conclusion about Congress's intent. PIAMI further requires that "[p]rior to instituting any legal action in a Federal or State court on behalf
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Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u4m5ent 2D9a0te Filed:0088/0/088/1/2901P9ageE4n5troyfI4D6: 6273791
Food, 517 U.S. at 557 (explaining that prudential bars to representative standing sound in "administrative convenience and efficiency").
Chief among these are problems of "individualized proof." Int'l Union, UAW v. Brock, 477 U.S. 274, 287 (1986) (quoting Warth, 422 U.S. at 515-16); see also Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004) (stating that an "organization lacks standing to assert claims of injunctive relief on behalf of its [constituents] where 'the fact and extent' of the injury that gives rise to the claims for injunctive relief 'would require individualized proof'" (quoting Warth, 422 U.S. at 51516)). For the reasons discussed in detail in the commonality section, adjudication of the claims here would turn on facts specific to each student, including unique features of each student's unique disability, needs, services, and placement. Efficient and successful judicial resolution of the claims would thus require participation and cooperation by numerous students
of an individual with mental illness, an eligible [P & A] . . . shall exhaust in a timely manner all administrative remedies where appropriate." 42 U.S.C. § 10807(a). This provision contemplates suits on behalf of "an individual with mental illness." And this exhaustion requirement, phrased as it is in individual terms, would be incompatible with authorizing P & As to bring suits like this one on behalf of hundreds of individuals. That is especially true given that, as we have already explained, this suit is subject to the IDEA's exhaustion requirement.
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Case: 18-C1a7s7e8 3:1D4o-ccvu-m30e1n1t:61-M12GM PDagoec:u4m6ent 2D9a0te Filed:0088/0/088/1/2901P9ageE4n6troyfI4D6: 6273791 and parents. And, as we stated, representative standing is inappropriate where such participation is necessary. PAIMI's text does not authorize DLC to bring claims of this scale and complexity on behalf of hundreds of constituents. The same prudential considerations just outlined bar PPAL, which does not claim congressional authorization to sue, from bringing this suit. VI. Affirmed.
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