United States Court of Appeals 

For the First Circuit 

No. 17-1700 

MATTHEW E. POLLACK, as next friend of B.P.; 

JANE QUIRION, as next friend of B.P., 

Plaintiffs, Appellants, 

v. 

REGIONAL SCHOOL UNIT 75, 

Defendant, Appellee, 

KELLY ALLEN; TANJI JOHNSTON; 

PATRICK MOORE; BRADLEY V. SMITH, 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Nancy Torresen, U.S. District Judge] 

Before 

Kayatta, Stahl, and Barron, 

Circuit Judges. 

 Richard L. O'Meara, with whom Rachel W. Sears and Murray, 

Plumb & Murray were on brief, for appellants. 

 Nathaniel A. Bessey, with whom Daniel A. Nuzzi and Brann & 

Isaacson were on brief, for appellee. 
March 26, 2018 
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KAYATTA, Circuit Judge. B.P. is a 19-year-old public 

school student in Regional School Unit 75 (the "district") in 

Topsham, Maine. He has been diagnosed with several disabilities, 

including autism, cognitive impairment, and a variant of LandauKleffner Syndrome. B.P. is nonverbal and unable to communicate 

with his parents about his experiences at school. His parents 

want him to carry an audio recording device at school to record 

pretty much everything said in his presence. The school district's 

refusal to permit the device prompted B.P.'s parents 

("plaintiffs") to file this lawsuit on his behalf under, among 

other things, the Americans with Disabilities Act ("ADA"). They 

also commenced an administrative proceeding under the Individuals 

with Disabilities Education Act ("IDEA"). As we will explain, 

because the administrative tribunal found that carrying the 

recording device would provide B.P. no demonstrable benefit, 

plaintiffs are precluded from proving an element necessary for 

them to prevail on their ADA claim. We therefore affirm the 

judgment for the district. 

I. 

We begin by describing the basic framework of the two 

principal statutes at issue in this case: the IDEA, under which 
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the plaintiffs' administrative claim was adjudicated, and the ADA, 

under which the claim relevant to this appeal arises.1

A. 

The purpose of the IDEA is "to ensure that all children 

with disabilities have available to them a free appropriate public 

education that emphasizes special education and related services 

designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A). 

A free appropriate public education, commonly referred to as a 

FAPE, is defined to include "special education and related services 

that . . . are provided in conformity with [a student's] 

individualized education program." Id. § 1401(9)(D). "Special 

education" is further defined as "specially designed 

instruction . . . to meet the unique needs of a child with a 

disability." Id. § 1401(29). "Related services" include 

supportive services, such as audiology and interpreting services, 

"as may be required to assist a child with a disability to benefit 

from special education." Id. § 1401(26)(A). "Supplementary aids 

and services" can also be included in a student's individualized 

education program ("IEP"), see id. § 1414(d)(1)(A)(i)(IV), and are 

defined as "aids, services, and other supports that are provided 

in regular education classes . . . to enable children with 

 1 Plaintiffs also assert a claim under the Rehabilitation Act. 

See 29 U.S.C. § 794. As explained below, however, we treat that 

claim as coextensive with the ADA claim. See infra note 2. 
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disabilities to be educated with nondisabled children to the 

maximum extent appropriate," id. § 1401(33). 

If parents are concerned that their child is not 

receiving a FAPE, they can file a complaint with the local 

educational agency. See id. § 1415(b)(6)(A). The agency then has 

the opportunity to resolve the complaint at a preliminary meeting 

with the parents and the relevant members of the IEP team. See 

id. § 1415(f)(1)(B)(i). If that meeting fails to resolve the 

complaint "to the satisfaction of the parents" within a certain 

time period, id. § 1415(f)(1)(B)(ii), the parents are entitled to 

have the issue decided in an impartial due process hearing, see 

id. § 1415(f)(1)(A). There are two types of arguments available 

to the parents at a due process hearing, both of which center on 

the denial of a FAPE. They can argue that their child is being 

denied a FAPE substantively, on the grounds that his or her IEP 

lacks certain special education or related services. See id. 

§ 1415(f)(3)(E)(i). And they can argue that their child is being 

denied a FAPE due to procedural violations that, for example, 

"significantly impede[] the parents' opportunity to participate in 

the [IDEA] decisionmaking process." Id. § 1415(f)(3)(E)(ii)(II). 

B. 

Casting a much wider net than the IDEA, the ADA seeks to 

eliminate discrimination against all individuals with 

disabilities. See 42 U.S.C. § 12101(b)(1). Title II of the 
- 6 - 

statute mandates that "no qualified individual with a disability 

shall, by reason of such disability, be excluded from participation 

in or be denied the benefits of the services, programs, or 

activities of a public entity, or be subjected to discrimination 

by any such entity."2 Id. § 12132. This protection "is 

characterized as a guarantee of 'meaningful access' to government 

benefits and programs." Theriault v. Flynn, 162 F.3d 46, 48 (1st 

Cir. 1998) (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985)); 

see also Iverson v. City of Boston, 452 F.3d 94, 99 (1st Cir. 2006) 

("The clear purport of Title II is to guarantee that qualified 

disabled persons enjoy meaningful access to public services, 

programs, and activities."). 

It is undisputed that B.P. is a qualified individual 

under the ADA. And for purposes of our review of the district 

court's summary judgment ruling, the school district does not 

dispute that to the extent B.P. did not obtain access to (or the 

benefits of) the district's services, it was by reason of his 

 2 Title II of the ADA was modeled after Section 504 of the 

Rehabilitation Act, which contains very similar language barring 

discrimination against individuals with disabilities by any 

program or activity receiving federal financial assistance. 

Because courts have interpreted the relevant parts of the two 

statutes consistently, see Theriault v. Flynn, 162 F.3d 46, 48 n.3 

(1st Cir. 1998), and because plaintiffs make no argument that any 

difference between the two statutes is relevant to this appeal, we 

focus our analysis on the ADA, see Parker v. Universidad de Puerto 

Rico, 225 F.3d 1, 4 (1st Cir. 2000) (noting that courts "rely 

interchangeably on decisional law" of the two statutes). 
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disability. Therefore, the only contested ADA issue for purposes 

of this appeal is whether, by rejecting plaintiffs' requests to 

equip B.P. with a recording device, the district denied him "the 

benefits of [its] services, programs, or activities" or otherwise 

discriminated against him. 

Such an unlawful denial occurs if a public entity refuses 

to "make reasonable modifications . . . when . . . necessary to 

avoid discrimination on the basis of disability, unless the public 

entity can demonstrate that making the modifications would 

fundamentally alter the nature of the service, program, or 

activity." 28 C.F.R. § 35.130(b)(7)(i). As noted in Nunes v. 

Massachusetts Department of Correction, 766 F.3d 136 (1st Cir. 

2014), required modifications, or what we more customarily call 

"accommodations,"3 include those reasonably necessary "to provide 

meaningful access to a public service." Id. at 145 (internal 

quotation marks omitted). 

In considering failure-to-accommodate claims under the 

ADA, we are also guided by duly enacted regulations implementing 

the statute's anti-discrimination mandate. See A.G. v. Paradise 

 3 The parallel regulation under the Rehabilitation Act uses 

the term "accommodation" rather than "modification," see 28 C.F.R. 

§ 41.53, "but there is no material difference between the terms," 

Nunes v. Mass. Dep't of Corr., 766 F.3d 136, 145 n.6 (1st Cir. 

2014). We use the term "accommodation," as we have done previously 

in these types of cases. See Nunes, 766 F.3d at 145–46; Toledo v. 

Sánchez, 454 F.3d 24, 32 (1st Cir. 2006); Kiman v. N.H. Dep't of 

Corrs., 451 F.3d 274, 283 (1st Cir. 2006). 
- 8 - 

Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 

2016). One such regulation promulgated by the Department of 

Justice is relevant here. The so-called effective communications 

regulation requires public entities "to ensure that communications 

with applicants, participants, members of the public, and 

companions with disabilities are as effective as communications 

with others." 28 C.F.R. § 35.160(a)(1). To achieve this, "public 

entit[ies] shall furnish appropriate auxiliary aids and services 

where necessary to afford individuals with disabilities . . . an 

equal opportunity to participate in, and enjoy the benefits of, a 

service, program, or activity of a public entity." Id. 

§ 35.160(b)(1); see also K.M. ex rel. Bright v. Tustin Unified 

Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013) (noting that "we 

are guided by the specific standards of the Title II effective 

communications regulation" because "the 'meaningful access' 

standard incorporates rather than supersedes applicable 

interpretive regulations"). 

A plaintiff pursuing an accommodation-based claim of 

discrimination under the ADA must in the first instance make 

several showings, one of which is the "effectiveness" of the 

proposed accommodation. Reed v. LePage Bakeries, Inc., 244 F.3d 

254, 259 (1st Cir. 2001) (explaining that the plaintiff has the 

burden to show that the proposed accommodation is effective and 

reasonable). In other words, the accommodation must provide a 
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benefit in the form of increased access to a public service. See 

Nunes, 766 F.3d at 145. Nothing in the effective communications 

regulation obviates the need to show that a requested accommodation 

will provide some such benefit. To the contrary, the regulation 

only requires public entities to provide auxiliary communication 

aids and services "where necessary to afford individuals with 

disabilities . . . an equal opportunity to participate in, and 

enjoy the benefits of, [the entity's] service, program, or 

activity." 28 C.F.R. § 35.160(b)(1) (emphasis added). And 

although the regulation directs that "[i]n determining what types 

of auxiliary aids and services are necessary, a public entity shall 

give primary consideration to the requests of individuals with 

disabilities," id. § 35.160(b)(2), the requested aid or service 

must still be beneficial in the first instance. See United States 

Dep'ts of Educ. and Justice, Frequently Asked Questions on 

Effective Communication for Students with Hearing, Vision, or 

Speech Disabilities in Public Elementary and Secondary Schools 8–

9, https://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqseffective-communication-201411.pdf. 

II. 

We next recite the relevant travel of plaintiffs' multitrack pursuit of their claims under the ADA and IDEA. Plaintiffs 

sued the district and several school officials in March 2013, 

alleging violations of the First Amendment, the ADA, the 
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Rehabilitation Act, and the IDEA. In May 2014, plaintiffs filed 

a second suit against the district and several other school 

officials, alleging that the district had "continued the pattern" 

of violating their rights under those statutes. The two cases 

were consolidated in the district court and in due course the 

parties filed cross-motions for summary judgment. 

The district argued that plaintiffs had failed to 

exhaust their administrative remedies under the IDEA, which barred 

their claims under the First Amendment, the ADA, and the 

Rehabilitation Act. In response, while the parties were awaiting 

a decision on the summary judgment motions, plaintiffs began the 

process of exhausting their IDEA remedies by requesting a due 

process hearing from the Maine Department of Education in early 

January 2016.4 In that request, plaintiffs asserted numerous 

violations of the IDEA and sought, among other things, a finding 

that the recording device was necessary to provide B.P. with a 

FAPE.5

 4 This was the fifth due process hearing plaintiffs requested. 

Two previous requests led to hearings and the other two were 

withdrawn. Because we do not rely on the prior hearings in 

resolving this appeal, we omit any discussion of them. 

5 B.P.'s father, Matthew Pollack, requested the 2016 IDEA 

hearing. B.P.'s mother, Jane Quirion, was present for most of the 

hearing and testified at it, but was not a party to the proceeding. 

However, because there is no dispute that B.P.'s parents are in 

privity for issue preclusion purposes and that they join here to 

sue solely as next friend of B.P., we use the term "parents" and 
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Shortly after plaintiffs requested the due process 

hearing, the district court entered summary judgment for the 

district on plaintiffs' remaining ADA, Rehabilitation Act, and 

First Amendment claims. It agreed with the district and found 

plaintiffs' claims barred for failure to have fully exhausted all 

remedies under the IDEA. Plaintiffs appealed that determination 

to this court.

While plaintiffs' appeal to this court was pending, an 

IDEA hearing officer from the Maine Department of Education moved 

forward on their hearing request. The hearing officer held a 

three-day hearing in March 2016 and, shortly thereafter, issued a 

decision. The decision rejected plaintiffs' position that the 

recording device was required under the IDEA. In so ruling, the 

hearing officer made the following findings, in relevant part:

No doubt it must be difficult to send a 

child who has a limited ability to communicate 

into the care of others. It requires a certain 

level of trust. The Student has attended 

school in the District for 12 years without a 

recording device, and throughout his entire 

educational career, he has been happy, has 

loved school, and has made continuous and 

significant progress. There have been only a 

handful of incidents of concern to the 

Parents, and the Parents have stated under 

oath that they felt the Student was safe at 

school. The need for a recording device is 

therefore not a safety issue. . . . Everyone, 

including the Parents, agrees that the Student 

has been making good progress in his 

 

"plaintiffs" interchangeably when referring to the IDEA proceeding 

and this case. 
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educational program. That is precisely what 

FAPE requires. The Student is receiving FAPE. 

 From a practical perspective, it is 

impossible for the District staff to report on 

every aspect of the Student's day, and it is 

not necessary. In the Parent's closing 

argument, he lists some examples where 

information should have been included in the 

daily log but wasn't, and most were essential 

in his eyes but not in mine or the other 

adjudicators who have denied his attempts to 

send the Student to school with a recording 

device. 

 It is unnecessary for the Student to wear 

a recording device to benefit educationally. 

As noted above, there is no dispute that the 

student is already receiving FAPE without the 

recording device. 

 There is [a] wealth of evidence from both 

educators and the parent of another child with 

autism (Parent B) that the recording device 

actually would be disruptive and detrimental 

to the education of the Student and would 

interfere with the learning process. It is 

also understandable, given the Parents' 

unusually high level of scrutiny over the 

actions of the District, that District staff 

would be concerned about how the Parents would 

use the recordings, and that things could be 

taken out of context from a recording of a 

nonverbal child. 

 Based upon the evidence, I conclude that 

allowing the Student to wear a device that 

would record his day at school, either by 

audio or video means, would interfere with his 

ability to receive FAPE. The Parent was 

unable to state how or whether the Parents 

would use the recordings. There is simply no 

demonstrable benefit, and there is the 

potential for harm. 

 In conclusion, the Parent has failed to 

provide any evidence that the Student is not 

receiving FAPE and no evidence to support the 

assertion that wearing a recording device 

could benefit him educationally. 
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Issuance of the hearing officer's ruling resolving 

plaintiffs' IDEA claims caused this court to dismiss the original 

appeal of the district court's exhaustion ruling as moot and to 

vacate the judgment of dismissal, since, if there were an 

exhaustion requirement, plaintiffs had met it. See Pollack v. 

Reg'l Sch. Unit 75, 660 F. App'x 1, 2–3 (1st Cir. 2016) 

(unpublished).6 On remand, the district court held that the IDEA 

hearing officer's un-appealed findings collaterally precluded 

plaintiffs from establishing that the recording device was a 

required accommodation under the ADA and the Rehabilitation Act. 

The district court also found, on summary judgment, that the 

effective communications regulation did not apply to 

communications between B.P. and his parents. After plaintiffs 

then tried their First Amendment claims to a jury and lost, final 

judgment entered. Plaintiffs appealed only the dismissal of their 

disability discrimination claims against the district. 

III. 

As we described above, the IDEA hearing officer found 

that allowing B.P. to attend school equipped with a recording 

device would provide "no demonstrable benefit." So the question 

 6 This order was issued prior to the Supreme Court's decision 

in Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743 (2017), which held 

that a plaintiff is only required to exhaust IDEA remedies when 

his "lawsuit seeks relief for the denial of a free appropriate 

public education." Id. at 754. 
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arises: To what extent, if any, does that factual finding preclude 

B.P. from establishing an essential element of his ADA claim; i.e., 

that the recording device would in fact provide a benefit to him 

in the form of greater access to the services that the district 

provides to its students? See Nunes, 766 F.3d at 145. 

The parties agree, and we therefore assume, that we 

afford the findings at issue, which were the product of an 

adjudicatory proceeding in a Maine administrative agency, "the 

same preclusive effect to which [they] would be entitled in the 

State's courts." Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 

(1986); see also FPL Energy Me. Hydro LLC v. FERC, 551 F.3d 58, 63 

(1st Cir. 2008) ("A federal court is generally bound under res 

judicata to give the same preclusive effect to a state court 

judgment as would be given to it by a local court within that 

state."); Dertz v. City of Chi., No. 94 C 542, 1997 WL 85169, at 

*10 (N.D. Ill. Feb. 24, 1997) (holding that the doctrine of issue 

preclusion applies to state administrative findings for claims 

brought under Title II of the ADA). Maine courts apply issue 

preclusion, also known as collateral estoppel, "to administrative 

proceedings as well as to court proceedings." Portland Water Dist. 

v. Town of Standish, 940 A.2d 1097, 1100 (Me. 2008). Under Maine 

law, issue preclusion applies when "the identical issue 

necessarily was determined by a prior final judgment, and the party 

estopped had a fair opportunity and incentive to litigate the issue 
- 15 - 

in the prior proceeding." Mutual Fire Ins. Co. v. Richardson, 640 

A.2d 205, 208 (Me. 1994) (quoting State Mutual Ins. Co. v. Bragg, 

589 A.2d 35, 37 (Me. 1991)). The application of issue preclusion 

"is determined on a case-by-case basis," id., and is "meant to 

serve the ends of justice not to subvert them," id. (quoting 

Pattershall v. Jenness, 485 A.2d 980, 983 (Me. 1984)). 

Plaintiffs also concede that the un-appealed decision of 

the IDEA hearing officer constitutes a final judgment and that 

they had a full and fair opportunity to litigate the issues 

necessarily decided in that proceeding. They argue, instead, that: 

(A) the pertinent factual findings of the hearing officer are not 

identical to the factual issues germane to their ADA claim, (B) the 

findings were, in any event, not necessary to the agency's 

judgment, (C) a difference in who had the burden of proof in the 

two proceedings makes preclusion inapplicable, and (D) events 

occurring after the agency judgment entered provide a basis for 

side-stepping the impact of that judgment in this case. Reviewing 

the district court's application of issue preclusion de novo, see 

Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 25 (1st Cir. 

2017), we address each argument in turn. 

A. Identical Issue

Under Maine law, issue preclusion "prevents the 

reopening in a second action of an issue of fact actually litigated 

and decided in an earlier case." Town of North Berwick v. Jones, 
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534 A.2d 667, 669-70 (Me. 1987) (internal quotation marks omitted). 

Plaintiffs argue that, without reopening any issue of fact found 

by the hearing officer, they can still demonstrate that allowing 

B.P. to wear a recording device would be effective in providing 

him meaningful access to the benefits that the district offers its 

students. Specifically, plaintiffs argue that we should read the 

hearing officer's findings as trained solely on an absence of 

educational benefits to B.P. So limited, plaintiffs contend, the 

findings are not a bar to proving that the device would provide 

B.P. greater access to other benefits stemming from keeping his 

parents informed about his school day so that they can better 

advocate for him, more like the parents of his non-disabled peers. 

While we are not sure we see the distinction plaintiffs would have 

us draw (especially since plaintiffs themselves repeatedly portray 

the benefit of improved communication as facilitating their 

ability to obtain a better education for B.P.), the simple fact is 

that plaintiffs never developed this argument in the district 

court. The argument is therefore waived. See Teamsters, 

Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v. 

Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any 

principle is settled in this circuit, it is that, absent the most 

extraordinary circumstances, legal theories not raised squarely in 

the lower court cannot be broached for the first time on appeal."). 
- 17 - 

Plaintiffs did argue below that the right to a FAPE is 

not necessarily the same as the right to an accommodation under 

the ADA. We agree. See Fry v. Napoleon Cmty. Sch., 137 S. Ct. 

743, 755–56 (2017) (noting that the ADA and the IDEA have "diverse 

means and ends," even though "the same conduct might violate" both 

statutes). This argument, though, overlooks the fact that issue 

preclusion applies not only to determinations of law, such as 

whether the IDEA or the ADA has been violated, but also to 

determinations of fact made in resolving issues of law. See Godsoe 

v. Godsoe, 995 A.2d 232, 237 (Me. 2010) ("A party may be 

collaterally estopped from relitigating a factual issue even if 

the two proceedings offer substantially different remedies or the 

second proceeding is based on a different claim than the first."); 

see also Restatement (Second) of Judgments § 27 cmt. c (1982) ("An 

issue on which relitigation is foreclosed may be one of evidentiary 

fact, of 'ultimate fact' (i.e., the application of law to fact), 

or of law."). In short, when we consider issue preclusion rather 

than claim preclusion, it is very often the case that the ultimate 

question in the earlier proceeding will differ from the ultimate 

question in the later proceeding. See, e.g., Napier v. Town of 

Windham, 187 F.3d 177, 184–85 (1st Cir. 1999) (applying Maine issue 

preclusion principles and giving preclusive effect to findings 

from a state criminal case in a subsequent federal civil rights 

suit); Gray v. TD Bank, N.A., 45 A.3d 735, 737–38, 742 (Me. 2012) 
- 18 - 

(giving preclusive effect to findings from a probate proceeding 

brought to determine whether certain funds held by a bank were the 

property of the estate in a subsequent breach of contract case 

brought against the bank). That difference does not mean that a 

predicate factual question in each case cannot be identical. See 

Gray, 45 A.3d at 742 ("[T]he factual question at the center of 

Gray's breach of contract claim against the Bank is identical to 

the question adjudicated and determined in the Probate Court . . . 

." (emphasis added)). And here, plaintiffs neither dispute that 

the question whether the recording device would benefit B.P. is at 

"the center of" their ADA claim, nor offer any properly preserved 

argument that the claimed ADA benefit is any different from the 

educational benefit that the hearing officer found was lacking 

under the IDEA. 

B. Necessary to the Judgment

Plaintiffs' principal argument is that the hearing 

officer's finding of no demonstrable benefit, even if identical to 

an issue upon which they need to prevail in order to successfully 

make out a reasonable accommodation claim, was not necessary to 

the hearing officer's final decision. They advance two versions 

of this argument: first, that the hearing officer's finding of 

"no demonstrable benefit" was an unnecessary alternative ground 

for her decision, and second, even if considering the effectiveness 

of the device was necessary, there was no need for the hearing 
- 19 - 

officer to find that the device offered no benefit whatsoever. We 

address each argument in turn. 

1. 

The hearing officer wrote that "[e]veryone, including 

the Parents, agrees that the Student has been making good progress 

in his educational program." She went on to state: "That is 

precisely what FAPE requires. The Student is receiving FAPE." As 

plaintiffs see it, the hearing officer could have stopped there. 

Indeed, by plaintiffs' most recently advanced logic, even if the 

hearing officer had concluded that the recording device would be 

quite effective and beneficial, she would have been required to 

rule against the parents if B.P. was nevertheless already receiving 

a FAPE. And, plaintiffs say, the hearing officer's finding of no 

demonstrable benefit could not be appealed because the judgment 

could stand independently on the finding that B.P. was receiving 

a FAPE. See Restatement, supra, § 28 cmt. a ("[T]he availability 

of review for the correction of errors has become critical to the 

application of preclusion doctrine."). 

Read as a whole, though, the hearing officer's decision 

does not invite us to construe the "no demonstrable benefit" 

finding as only an alternative ground for the decision. The ruling 

never labels the finding as an unnecessary or alternative part of 

its reasoning. To the contrary, the hearing officer's statement 

that B.P. is "receiving FAPE" follows -- and seems to be based on 
- 20 - 

-- a discussion of events belying any need for the recording 

device. Additionally, the decision twice labels its finding 

regarding the efficacy of the device as its conclusion.7 In this 

manner, the text invites the reader to see the finding of "no 

demonstrable benefit" as reinforcement for the legal conclusion 

that B.P. was receiving a FAPE, rather than as an unnecessary 

alternative basis for the decision's ultimate conclusion that the 

device was not required under the IDEA. 

The nature of the hearing that gave rise to the finding 

supports reading the hearing officer's conclusion as standing on 

two reinforcing -- rather than alternative -- grounds. Regarding 

the recording device claim, the proceeding was structured to 

determine, in the words of the district court's initial summary 

judgment ruling requiring exhaustion under the IDEA, "whether 

B.P.'s IEP should include his use of supplementary aids to properly 

protect B.P. at school or allow B.P. to effectively communicate 

and advocate for himself so that he could best work towards his 

educational goals." Not surprisingly, therefore, much of the 

hearing focused on whether and to what extent the recording device 

would benefit B.P. by allowing him to best pursue his educational 

 7 The decision expressly "conclude[s]" that the device would 

be to B.P.'s detriment by interfering with his ability to receive 

a FAPE (i.e., would interfere with his education). It also 

includes the finding that the parents provided "no evidence to 

support the assertion that wearing a recording device could benefit 

[B.P.] educationally" as part of its "conclusion."
- 21 - 

goals. All parties, especially plaintiffs, treated this as a 

central question in the IDEA proceeding and they therefore made 

their best case on this issue. In particular, plaintiffs 

emphasized that B.P. required the device for safety reasons, to 

"protect himself," as well as to advocate for himself through his 

parents. At the hearing, B.P.'s father testified that without the 

device, "there is no way for [B.P.] to tell us what happens . . . 

and, therefore, for him to . . . advocate for himself or get our 

assistance in advocating for him." B.P.'s mother testified 

similarly. Plaintiffs maintained this position in the written 

closings they submitted to the hearing officer. Plaintiffs also 

claimed that the device was necessary to allow them to reinforce 

at home the programming provided at school. In response, the 

district elicited testimony from its staff that the device would 

not support B.P.'s education and could in fact hinder it by 

increasing his isolation and making staff and his peers 

uncomfortable. Given this extensive and predominant focus on the 

potential benefits of the recording device, we decline plaintiffs' 

invitation to presume that the hearing officer's finding that B.P. 

was receiving a FAPE would have remained unchanged had the parents 

convinced the officer that B.P. would indeed benefit from wearing 

the device. We find additional support for our conclusion in the 

fact that the hearing officer, in her ruling, expressed puzzlement 
- 22 - 

that the parents failed to explain precisely how they would use 

the recordings.8

Substantive IDEA law buttresses our reading that the 

hearing officer's "no demonstrable benefit" finding was not an 

unnecessary addendum, but rather served as an important 

reinforcement of the decision that B.P. was already receiving a 

FAPE. It is true that a school need not maximize the benefits 

received by a student in order to provide a FAPE. See Endrew F. 

ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 

1001 (2017) (rejecting an argument that a FAPE must provide 

students with disabilities "substantially equal" opportunities to 

those afforded students without disabilities). At the same time, 

though, the IDEA establishes no objective tool to measure how much 

of an available benefit the school must provide. See id. at 1000 

n.2 ("We declined to hold in Rowley, and do not hold today, that 

'every handicapped child who is advancing from grade to grade . . . 

is automatically receiving a [FAPE].'" (alterations in original) 

(quoting Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist., 

Westchester Cty. v. Rowley, 458 U.S. 176, 203 n.5 (1982))). 

Rather, the IDEA requires a hearing officer to pay heed to the 

precise circumstances confronting an individual student. See id. 

at 999 ("To meet its substantive obligation under the IDEA, a 

 8 In other words, what exactly were the parents going to do 

with the four or five hours of recordings each evening?
- 23 - 

school must offer an IEP reasonably calculated to enable a child 

to make progress appropriate in light of the child's 

circumstances." (emphasis added)). The statute directly calls for 

consideration of the "unique needs" of each child, 20 U.S.C. 

§ 1400(d)(1)(A), and of the possibility that "supplementary aids" 

may need to be included in a child's IEP, id. 

§ 1414(d)(1)(A)(i)(IV). A careful hearing examiner confronted 

with the parents' claim that a recording device would meaningfully 

benefit B.P. in a manner relevant to his receipt of a FAPE might 

well have thought it important -- as plaintiffs themselves 

apparently did -- to assess all the potential benefits of the 

device before finally reaching a conclusion that B.P. was receiving 

a FAPE. 

The distinction between a substantive deprivation of a 

FAPE and a procedural deprivation of a FAPE may also have accounted 

for the hearing officer's assessment of the extent to which the 

device would benefit B.P. A substantive inquiry focuses on the 

"proper content of an IEP." See Lessard v. Wilton-Lyndeborough 

Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). A procedural 

inquiry instead focuses on the parents' ability to participate 

meaningfully in the IDEA process. See id. (citing the right of 

parents to be part of the IEP team as an example of the IDEA's 

procedural requirements). Our review of the IDEA due process 

record suggests that there was a fair amount of confusion, or at 
- 24 - 

the very least an evolution throughout the proceedings, regarding 

whether the hearing officer was adjudicating a substantive 

challenge or a procedural one, or both. Compare 20 U.S.C. 

§ 1415(f)(3)(E)(i) (substantive) with id. § 1415(f)(3)(E)(ii) 

(procedural). Although the hearing officer initially believed 

that she was adjudicating a substantive challenge, she ultimately 

framed the issue in her opinion in the words of a procedural 

challenge. And between plaintiffs' first closing argument and 

their reply closing, they seem to have subtly changed from 

emphasizing the substantive nature of their claim (that B.P. was 

substantively deprived of a FAPE because he lacked the ability to 

protect himself and advocate for himself) to emphasizing its 

procedural nature (that without the device, the parents were 

deprived of their procedural right to participate in the IDEA 

decision-making process, which in turn deprived B.P. of the ability 

to protect himself and advocate for himself). In light of this 

apparent evolution, the hearing officer's analysis (and her 

multiple conclusions) can reasonably be read as inquiring into 

both whether B.P. was substantively deprived of a FAPE and whether 

he was procedurally so deprived. So viewed, the "no demonstrable 

benefit" finding may have been necessary to rejecting the IDEA 

claim even if it was not necessary to finding that B.P. was not 

substantively deprived of a FAPE. 
- 25 - 

For these reasons, and for purposes of considering the 

preclusive effects of the hearing officer's findings, we are not 

persuaded that an assessment of the efficacy of the recording 

device was unnecessary to the FAPE proceeding. See Manganella v. 

Evanston Ins. Co., 700 F.3d 585, 593–94 (1st Cir. 2012) (rejecting 

plaintiff's argument against issue preclusion because "although 

[plaintiff] argues here that the arbitrators could have just 

assumed the truth of the harassment allegations [and reached the 

same result], he did not ask them to do so" but rather "vigorously 

litigated" their truth); Restatement, supra, § 27 cmt. j ("The 

appropriate question, then, is whether the issue was actually 

recognized by the parties as important and by the trier as 

necessary to the first judgment."). Moreover, a rationale we have 

cited for the requirement that a finding be necessary to the 

judgment -- that the parties do not have a strong incentive to 

litigate a peripheral issue, see Commercial Assocs. v. Tilcon 

Gammino, Inc., 998 F.2d 1092, 1097 (1st Cir. 1993) -- shrinks 

considerably where the parties have vigorously litigated the issue 

before a tribunal that to all indications viewed the issue as 

important. Here, the parties and the hearing officer had ample 

cause to regard a full assessment of the potential benefits of the 

recording device as relevant to the determination of whether B.P. 

was receiving a FAPE (and thus as necessary to the overall agency 

judgment), and appear to have acted accordingly. 
- 26 - 

Plaintiffs' argument that they had no incentive to 

appeal the hearing officer's ruling therefore lacks the full force 

it might have had were it clear that the finding that B.P. was 

receiving a FAPE stood entirely on its own without any reliance on 

the "no demonstrable benefit" finding. If a reviewing court agreed 

with our reading of the hearing officer's decision, then it would 

have entertained an appeal of the latter finding. And if it 

disagreed with our reading, plaintiffs' argument on preclusion 

would have been substantially strengthened. In sum, plaintiffs 

likely had ample incentive to appeal the hearing officer's judgment 

if they felt that the "no demonstrable benefit" finding was plainly 

wrong. 

2. 

This brings us to plaintiffs' closely-related fallback 

theory: that, even assuming some assessment of the efficacy of 

the recording device was necessary to the judgment, the hearing 

officer did not need to decide that the device actually lacked any 

benefit at all. Rather, all the officer needed to find on this 

score, say plaintiffs, was that the device was not so effective 

and important as to be necessary for a FAPE; her additional finding 

that the device would provide no benefit at all, much less that it 

would interfere with the provision of a FAPE and could 

affirmatively cause harm, was simply "not the standard" and was 

therefore unnecessary to the judgment.
- 27 - 

In rejecting this argument, we do not reject plaintiffs' 

contention that, in theory, the hearing officer could have 

concluded that the recording device would provide some benefit, 

yet not enough that its provision was necessary to provide B.P. 

with a FAPE, and still have reached the same result. Cf. K.M. ex 

rel. Bright, 725 F.3d at 1101 ("[T]he IDEA does not require schools 

to provide equal educational opportunities to all students." 

(internal quotation marks omitted)); Endrew F., 137 S. Ct. at 1001. 

But we resist the temptation to "speculate that a prior decision 

could have been rested on narrower grounds than those actually 

chosen." Wright & Miller, supra, § 4421. As we have previously 

observed, "a factual determination is not inherently untrustworthy 

just because the result could have been achieved by a different, 

shorter and more efficient route." Commercial Assocs., 998 F.2d 

at 1097. 

Plaintiffs cite no authority for their argument to the 

contrary. The Restatement is silent on the matter, despite a 

thorough discussion of the preclusive effects of "evidentiary 

facts," i.e., those that are not ultimate facts. Restatement, 

supra, § 27 cmt. j; id. § 27 ill. 17. Our survey of Maine case 

law has revealed no hint that Maine courts would embrace a rule 

that issue preclusion applies only where a finding on an issue 

necessary to the judgment is the narrowest possible finding on 

that question. In fact, several Maine cases suggest the opposite. 
- 28 - 

See Perry v. H.O. Perry & Son Co., 711 A.2d 1303, 1305 (Me. 1998) 

(giving preclusive effect to a finding that "[t]he record is devoid 

of any evidence" of detrimental reliance); Button v. Peoples 

Heritage Sav. Bank, 666 A.2d 120, 121, 123 (Me. 1995) (giving 

preclusive effect to a finding that "all of [decedent's] actions 

in arranging her financial affairs were voluntary," where the only 

relevant action was the redemption of a particular certificate of 

deposit (internal quotation marks omitted)). So, too, does 

precedent applying the preclusion principles of other states. See 

Gambino v. Koonce, 757 F.3d 604, 609–10 (7th Cir. 2014) (rejecting 

appellant's argument that the first court's finding of fraudulent 

intent was not necessary to the judgment because its decision on 

liability could have rested on a finding of recklessness and its 

award of punitive damages on a finding of gross negligence); cf. 

Stoehr v. Mohamed, 244 F.3d 206, 209 (1st Cir. 2001) (per curiam) 

(rejecting an argument against issue preclusion on the grounds 

that the first court's finding of fraud was not essential because 

liability under Mass. Gen. Laws 93A need only be premised on unfair 

conduct). But cf. NLRB v. Thalbo Corp., 171 F.3d 102, 111 (2d 

Cir. 1999) (noting that, where the magistrate judge believed that 

a Title VII claimant was required to seek other work 

"aggressively," a finding that the claimant did not search for 

other jobs at all would have been "superfluous"). 
- 29 - 

In assessing the implications of the foregoing 

discussion of the necessity requirement in this case, we are guided 

by Maine's recognition that "collateral estoppel is, after all, a 

flexible doctrine," Pattershall, 485 A.2d at 983 (quoting Hossler 

v. Barry, 403 A.2d 762, 769 (Me. 1979)), and its understanding 

that the doctrine "is 'meant to serve the ends of justice not to 

subvert them,'" Mutual Fire, 640 A.2d at 208 (quoting Pattershall, 

485 A.2d at 983). We have previously taken a pragmatic approach 

in applying issue preclusion principles. See Miller v. Nichols, 

586 F.3d 53, 62 (1st Cir. 2009) (applying Maine law and rejecting 

an argument against issue preclusion in part because it 

"ignores . . . what actually happened in the state court 

proceedings"); Commercial Assocs., 998 F.2d at 1096 (noting that 

Rhode Island courts "allow themselves a good deal of latitude in 

applying the rule [of collateral estoppel], observing the spirit 

of it rather than the letter" (alteration in original) (quoting 

Hill v. Bain, 23 A. 44, 44 (R.I. 1885))). We do the same here, 

and decline to adopt the unbending application of the necessity 

requirement urged by plaintiffs. The parties to the prior 

proceeding litigated a factual issue as if it were the essential 

issue in the case, the applicable law provided no clear sign that 

resolution of the issue was a frolic, and there is nothing about 

the substance of the resulting finding to cause one to think that 

it was not the product of a seriously undertaken decision by the 
- 30 - 

adjudicator. In this context, we conclude that the purposes 

underlying the necessity requirement are adequately satisfied. 

C. Burden of Proof

We turn now to plaintiffs' third argument: that, under 

Maine law, when the party against whom preclusion is sought bears 

the burden of proof in the first proceeding but not in the second, 

findings of fact in the first proceeding are often not given 

preclusive effect in the second proceeding. See Crawford v. Allied 

Container Corp., 561 A.2d 1027, 1028 (Me. 1989); see also 

Restatement, supra, § 28(4). But that is not the case here. 

Rather, as ADA claimants, plaintiffs must carry in this second 

proceeding the burden of proving that the proposed accommodation 

-- the recording device -- will be beneficial, i.e., will provide 

some increased access to a public service. See Reed, 244 F.3d at 

258–59. Similarly, they bore the burden in the IDEA proceeding of 

showing that the device was necessary for B.P. to receive a FAPE. 

In short, on de novo review we find that there was no relevant 

shifting of the burden. 

D. New Evidence of Pretext

Plaintiffs argue, finally, that evidence that has come 

to light since the IDEA hearing suggests that the district's 

refusal to allow the recording device was pretextual. This 

evidence, plaintiffs contend, creates an issue of material fact 

"concerning the validity of the very finding the district court 
- 31 - 

deemed preclusive." Plaintiffs point specifically to evidence 

that the district's special education director agreed to allow 

them to view video recordings of B.P.'s speech-language therapy 

only if they promised not to use the recordings as a basis for a 

complaint against the therapist. They also rely on evidence that 

the director prohibited them from visiting B.P.'s school 

unannounced because they were solely focused on seeking out wrongs 

by school staff. 

Even if, as plaintiffs suggest, the new evidence 

establishes an issue of material fact as to whether the district's 

refusal to allow the device was pretextual, it has no impact on 

this case. Pretext is only relevant to the final stage of the ADA 

analysis. Once the plaintiff has shown that the accommodation 

sought is reasonable and effective and the defendant has claimed 

undue hardship, then the plaintiff has the opportunity to prove 

that the defendant's claimed hardship is pretextual. See Wynne v. 

Tufts Univ. Sch. of Med., 976 F.2d 791, 796 (1st Cir. 1992) 

(explaining that, when pretext is at issue, plaintiff must produce 

specific facts that undercut the defendant's position). Here, the 

analysis does not even get past the very first step. Because of 

the hearing officer's factual findings, plaintiffs cannot make the 

preliminary showing that the device would benefit B.P. in some 

manner. And because plaintiffs do not dispute that proving that 

the device would benefit B.P. is essential to sustaining their 
- 32 - 

reasonable accommodation claim, they cannot prevail.9 No amount 

of pretext evidence can change that result. 

IV.

For the foregoing reasons, we affirm. 

 9 Because we find that plaintiffs' reasonable accommodation 

claim is precluded by the 2016 IDEA due process hearing, we need 

not address the district's alternative arguments that the claim is 

barred by the preclusive effects of the earlier 2012 due process 

hearing or by the jury's findings in the First Amendment trial. 

Similarly, we need not address plaintiffs' contention that 

communications between them and B.P. fall within the scope of the 

effective communications regulation. Even if they do, plaintiffs 

cannot show that the recording device is "necessary" for purposes 

of the regulation, due to the hearing officer's finding that it 

offered "no demonstrable benefit."