1The District repeatedly refers to the “IDIEA.” The court

assumes that the District intended the Individuals with

Disabilities in Education Act or IDEA as it is commonly

abbreviated.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Catherine Burke and

Mikael Rolfhamre

v. Civil No. 06-cv-317-JD

Brookline School District

O R D E R

After the court granted Brookline School District’s motion

to dismiss the complaint, Catherine Burke and Mikael Rolfhamre,

who are proceeding pro se, moved for reconsideration. Their

motion is supported by a memorandum of law filed by the

Disabilities Rights Center, Inc., as amicus curiae. The District

opposes reconsideration.

In the order dismissing the complaint, the court found that

the plaintiffs had limited their claims to retaliation under the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203, and

violation of the procedural requirements of Section 504 of the

Rehabilitation Act. The plaintiffs did not pursue claims under

the Family Educational Rights and Privacy Act (“FERPA”), the

Individuals with Disabilities in Education Act (“IDEA”),1 and 42

Case 1:06-cv-00317-JD Document 20 Filed 03/15/07 Page 1 of 3
2They acknowledge that their complaint was “not artfully

drafted.” Mem. at 9.

2

U.S.C. § 1983, and those claims were dismissed. The court held

that the plaintiffs’ ADA and Section 504 claims were barred by

the holding in Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (1st

Cir. 2006), that “where the underlying claim is one of violation

of the IDEA, plaintiffs may not use § 1983--or any other federal

statute for that matter--in an attempt to evade the limited

remedial structure of the IDEA.” 

The plaintiffs argue, with the assistance of amicus curiae,

that their claims are independent retaliation claims under the

ADA and Section 504 which are not restricted by the holding in

Diaz-Fonseca.

2 The First Circuit stated in Diaz-Fonseca that

“the IDEA does not restrict rights and remedies that were already

independently available through other sources of law.” Id. The

plaintiffs contend that because the ADA and Section 504 also

provide remedies for retaliation, their claims are independent of

the IDEA. 

As the court noted in the previous order, however, the

plaintiffs’ claims are premised on violations of the IDEA and the

District’s response to the plaintiffs’ efforts to obtain IDEA

benefits for their children. Because of similar provisions in

the ADA, Section 504, and the IDEA, claims arguably might arise

Case 1:06-cv-00317-JD Document 20 Filed 03/15/07 Page 2 of 3
3

under all three statutes. The plaintiffs assert in the

memorandum submitted on their behalf by amicus curiae that “the

gravamen of their claims are that Defendant ‘engaged in

retaliation, coercion, intimidation and interference’ as a result

of their advocacy for children under the Individuals with

Disabilities Education Act . . . .” Mem. at 1. The IDEA

provides for retaliation claims that are related to rights

protected under the IDEA. See Weber v. Cranston Sch. Comm., 212

F.3d 41, 51-52 (1st Cir. 2000). Only claims for violations of

rights independently provided under the other statutes are

actionable outside of the restricted remedies allowed under the

IDEA. Diaz-Fonseca, 451 F.3d at 29. The plaintiffs have not

convinced the court that their claims are based on rights and

remedies that are independent of the IDEA.

Conclusion

For the foregoing reasons, the plaintiffs’ motion for

reconsideration (document no. 15) is denied.

 SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 15, 2007

cc: Catherine E. Burke, pro se

Dean B. Eggert, Esquire

Ronald K. Lospennato, Esquire

Mikael Rolfhamre, pro se

Case 1:06-cv-00317-JD Document 20 Filed 03/15/07 Page 3 of 3