United States Court of Appeals 

For the First Circuit 

No. 18-1602 

G., a 12-year-old minor suing by a fictitious name for privacy 

reasons; MOTHER and FATHER, suing under fictitious names to 

protect the identity and privacy of G., their minor child, 

Plaintiffs, Appellants, 

v. 

THE FAY SCHOOL, by and through its board of trustees; 

ROBERT GUSTAVSON, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Timothy S. Hillman, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Lynch and Lipez, Circuit Judges. 

John J.E. Markham, II, with whom Markham & Read was on brief, 

for appellants. 

Sarah Goldsmith Schwartz, with whom Anthony L. DeProspo, Jr. 

and Schwartz Hannum PC were on brief, for appellees. 

 

July 17, 2019 
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LIPEZ, Circuit Judge. Appellant "G," a 12-year-old 

minor, and G's parents appeal from the entry of summary judgment 

for the Fay School, Inc., and Fay's Head of School, Robert 

Gustavson.1 G, formerly a student of the Fay School, allegedly 

suffers from Electromagnetic Hypersensitivity ("EHS"), a 

sensitivity to electromagnetic fields ("EMFs"). The family 

brought suit against Fay after the school refused to remove 

wireless internet from its classrooms to accommodate G's 

condition. In the only claims remaining on appeal, the family 

alleges unlawful retaliation for demands for an accommodation for 

G's condition in violation of Title V of the Americans with 

Disabilities Act ("ADA"), 42 U.S.C. § 12203(a), breach of contract, 

and misrepresentation. 

We affirm the district court's rejection of these 

claims, concluding (1) as an issue of first impression for our 

court, that damages (compensatory and nominal) are not an available 

remedy for a Title V retaliation claim premised upon an exercise 

of rights under Title III of the ADA; and (2) that the family has 

failed to raise triable issues of fact as to the contract and 

misrepresentation claims. 

 1 G sues under a fictitious name to protect his privacy as a 

minor. G and his parents are, hereinafter, collectively referred 
- 3 - 

I. 

We recite the facts in the light most favorable to the 

G family, "the party resisting summary judgment." Tropigas de 

Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 

637 F.3d 53, 54 (1st Cir. 2011). 

A. The Parties 

The Fay School is an independent day and boarding school 

in Southborough, Massachusetts. It enrolls children from prekindergarten through the ninth grade, touting its ninth-grade year 

as "a capstone" year that provides its graduates "new opportunities 

for personal growth as . . . athletes, artists, and leaders." In 

a yearly parent-student handbook, the Fay School outlines its "core 

values," including "academic excellence," "earnest effort," 

"honorable conduct," "dedicated service," and "wellness of mind, 

body and spirit." To enroll at the school, students and their 

parents must sign an enrollment contract stating that they will 

"agree to comply with the [s]chool's policies, rules and standards 

. . . as stated in the [h]andbook." In this contract, parents and 

students must also acknowledge that the handbook "does not 

constitute a contract between [them] and the School." The G family 

signed this enrollment contract. 

 

to as "the G family" or "the family." The Fay School, Inc. 

(hereinafter, "the Fay School" or "the school") and Fay's Head of 

School, Robert Gustavson, are, hereinafter, collectively referred 

to as "Fay." 
- 4 - 

As the handbook advises, technology is "an integral part 

of the academic and residential programs" at the school. 

Classrooms are equipped with "projectors, video displays, [and] 

Apple TV."2 In or around 2009, the school installed wireless 

internet ("Wi-Fi"), with access points throughout its campus, to 

"allow[] [for] increased mobility and flexibility within the 

classrooms" not possible with hardwired devices. The Wi-Fi is 

frequently accessed by students and teachers at the school. Most 

upper-level teachers use "Google Docs," an internet-based program, 

as part of classroom instruction. Tablet computers are provided 

by the school to younger students for in-classroom use, and the 

school requires that all seventh-, eighth-, and ninth-grade 

students bring their own laptops or tablets to school 

for computer-based tasks. The students use these devices to 

access the Fay School's Wi-Fi. 

G was a student at the Fay School between 2009 and 2015. 

He allegedly suffers from EHS, and claims, as a result, to 

experience "headaches, nausea, nose bleeds, dizziness and heart 

palpitations" when exposed "for long periods of time . . . to radio 

 2 Apple TV is a digital media player that can receive digital 

data, such as music or video, from a specific source (like an 

iTunes library on a computer) and stream it to a television or 

other video display. See John-Michael Bond, Why Apple TV can't 

compete in 2018, The Daily Dot (March 23, 2018),

https://www.dailydot.com/debug/what-is-apple-tv-cost/. 
- 5 - 

wave radiation emitted from various types of electronic devices, 

including Wi-Fi transmissions to and from computers." 

B. Factual History 

G entered the Fay School as a first-grader in 2009. 

Several years after his enrollment, in the summer and fall of 2012, 

the school upgraded its wireless internet system to operate at a 

higher frequency band. In October of that year, G's mother 

("Mother")3 began expressing concerns about the harmfulness of WiFi generally, stating in an email to the school that "there is a 

direct link to illness and wi-fi radiation." In 2014, Mother again 

expressed these concerns to various individuals at the school, 

including in an email to the school nurse in which she stated that 

she "ha[d] been working with several engineers and experts [on the 

subject of EMF exposure]," had encountered "hundreds of studies 

. . . concerning the safety of using Wi-Fi," and advised 

"immediate proactive steps." She also wrote to the head of the 

school's board of trustees ("the Board") concerning the dangers of 

Wi-Fi exposure. She requested "immediate proactive steps" and 

expressed her "confiden[ce] that [he] [would] give [the] topic the 

attention it deserves." Mother did not mention G or his condition 

in these communications.

 3 G's parents sue under the fictitious names "Mother" and 

"Father" to protect the identity and privacy of their minor son. 
- 6 - 

Following Mother's communications, the Head of School, 

Robert Gustavson, and other Fay School staff members exchanged a 

series of emails regarding Mother's Wi-Fi concerns. Some of the 

comments in those emails were dismissive or derisive: 

 "It's inappropriate and presumptuous for a 

parent to contact trustees and demand that a 

topic be discussed at a Board meeting . . . . 

[S]he should not be rewarded for going around 

me [Gustavson]." 

 "We are . . . in agreement that we should . . . 

try to cut this off at the pass." 

 "Seems to me that meeting with them [the 

family] would open a can of worms." 

 "Blahahahahahahahaha!" [in response to an 

email with the subject line "Rabbit Ears and 

Aluminum Foil]

 "Perhaps it is time to ignore her requests[.]"

On May 15, 2014, Gustavson met with Mother and Father to 

discuss their Wi-Fi concerns. At the meeting, Mother requested 

that the school replace its Wi-Fi with ethernet cords to connect 

to the internet. Following the meeting, the school conducted 

independent research on the Wi-Fi issue and concluded that evidence 

of harm was insufficient to require mitigating efforts. On May 

23, Gustavson informed Mother of the school's conclusions, 

requested that all further communications concerning the issue be 

directed to him, the school's Director of Operations, or the 

school's Director of Information Technology, and asked that Mother 

"refrain from contacting other Fay employees or trustees" 

concerning the issue. Mother continued to email an array of Fay 
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School staff members concerning the Wi-Fi issue and requested a 

further meeting to discuss the topic. The Fay School declined her 

request to meet. 

Around this same time, Mother brought G to his primary 

care provider complaining that her son suffered symptoms, such as 

chest pressure and stomach pain, when in proximity to Wi-Fi. The 

provider recorded the discussion but noted that, "at [that] time[,] 

[he] [could not] support that [Wi-Fi] [was the] cause of . . . 

[G's] stomach [and] chest issues." Subsequently, Mother sought 

the advice of an EHS specialist, Dr. Jeanne Hubbuch, explaining 

that G experienced "[h]eadache[s], dizziness, ringing ears, chest 

pressure, [and] nausea" at school but that the symptoms 

"dissipate[d] [at] home where [they] use Ethernet." After meeting 

with Mother, but not G, Dr. Hubbuch "preliminarily" diagnosed G 

with "EMF sensitivity" and subsequently advised the Fay School of 

her diagnosis. The school requested further documentation of G's 

diagnosis, which the family did not provide. 

In September 2014, after Mother and Father continued to 

contact members of the school community about the dangers of 

wireless internet, Mother was removed from her role in the Fay 

School's Parents Association. According to the Parents' 

Association, Mother was removed because she had organized a 

discussion on Wi-Fi safety with the Parents Independent School 

Network ("PIN") and had "strongly le[d] [PIN] to believe" that Fay 
- 8 - 

and the Parents Association "were aware and in support of this 

event," even though they were not. The school also sent a letter 

to Mother and Father setting forth the "terms upon which [the 

family] [could] remain members of the Fay community." The letter 

stated in part: 

You have the opportunity and privilege, not the 

right, to send your child to Fay School. As 

parents, you do have the right to determine for 

yourself whether the School's environment is 

appropriate for your children. However, as 

previously indicated, we will not engage in further 

dialogue with you concerning Wi-Fi safety, and we 

will not allow you to continue to disrupt our school 

community. 

 

On November 14, 2014, Mother and Father formally 

asserted, through counsel, that G suffered from EHS and requested 

that the school accommodate G by (1) providing an immediate meeting 

with the school's nurse; (2) educating all staff on the dangers of 

EMF exposure; (3) identifying and marking all EMF sources on 

campus; (4) allowing G to access the school curriculum through an 

ethernet cord; (5) engaging an independent third party to quantify 

the EMF exposure at the school and share findings with parents; 

(6) reducing the EMF emissions at school to "levels below those 

known in scientific literature to create biologically 

disregulating effects;" (7) "mandat[ing] that personal devices be 

turned off;" and (8) not "ostraciz[ing] or isolat[ing] children in 

any way while developing or instituting these accommodations." On 

December 8, the school responded, explaining that it needed 
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additional medical documentation "to fully evaluate [the family's] 

requests." The letter stated that "[t]he documentation [the 

family] [had] provided [was] insufficient [because] (1) it [did] 

not specify the existence of a disability or explain the need for 

any reasonable accommodation; and (2) the information d[id] not 

specify any functional limitations due to any disability." 

On February 3, 2015, Dr. Hubbuch examined G. Although 

Dr. Hubbuch did not diagnose G with EHS, she noted that "if 

something in school was [the] cause [of G's symptoms], [she would] 

expect it to persist [the] entire day at school and it does not." 

On February 25, Mother advised Dr. Hubbuch that G's symptoms had 

worsened. She did not tell Dr. Hubbuch that, about two weeks 

earlier, G had hit his head against a tree while sledding and had 

not been wearing a helmet at the time of that accident. Then, on 

March 31, Dr. Hubbuch diagnosed G with EHS and recommended that he 

be accommodated in an environment with reduced exposure to EMFs. 

On April 27, 2015, Mother and Father requested, through 

counsel, that Fay allow them to "take a walk-through tour of G's 

day at school" to "learn how much exposure there is to Wi-Fi and 

EMF in each room in which G spends time." The school refused. 

Subsequently, Fay and the family agreed that G would submit to 

"independent medical evaluation[s]" by two medical specialists. 

After the medical opinions were received, if they showed that "EHS 

is implicated," the school said that it would allow the parents to 
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do a "walk-through" and would make reasonable attempts to 

accommodate G. 

On June 30, 2015, an independent medical specialist 

examined G. At the parents' request, the specialist's examination 

did not include an interview of G separate from his parents. After 

the examination, the specialist noted G's symptoms -- 

"[h]eadaches, neuralgia [nerve pain,] . . . [c]hest 'pressure' by 

parental report[,] . . . [t]innitus [ringing in the ears] by 

parental report[,] . . . [s]chool performance difficulty" -- but 

concluded, "[t]here is [a] lack of credible, rigorous and 

controlled, validated scientific data to support any relationship 

between electromagnetic radiation and G's myriad reported 

symptoms." The specialist declined to diagnose G with EHS. 

On August 3, 2015, Mother and Father demanded, through 

counsel, that Fay allow them to conduct a "walk-through" of the 

school "that week." Then, on August 12, the family filed the 

original complaint in this action against Fay. The school 

thereafter agreed to allow the family to conduct a "walk-through" 

if G completed the second independent medical exam, as earlier 

agreed upon. On September 10, G was examined by two pediatric 

neurologists. Neither diagnosed G with EHS. 

Between August and October 2015, the family conducted a 

series of walk-through visits at the Fay School. Following these 

visits, Fay agreed to install an ethernet port in each of G's 
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classrooms so that he could connect his laptop to the internet 

without using a wireless connection and to seat him at least six 

feet away from other laptop users. Despite these changes, G's 

symptoms escalated. In December 2015, he took a medical leave of 

absence. During his leave from the school, G experienced no 

symptoms.

When G returned to the Fay School, at the end of his 

medical leave, Mother and Father demanded that the school either 

remove all wireless internet from G's classrooms or create a 

separate, Wi-Fi-free classroom for G and his classmates. Fay 

refused. In January 2016, Mother and Father withdrew G from the 

Fay School in the middle of his seventh-grade year, and, in 

February, filed an amended complaint. 

Since the amended complaint was filed, G has completed 

his seventh-, eighth-, and ninth-grade years at private schools 

that operate without Wi-Fi. 

C. Procedural History 

The family filed the operative complaint on February 11, 

2016, alleging claims of disability discrimination against the Fay 

School under Titles III and V of the Americans with Disabilities 

Act ("ADA"), which, respectively, prohibit disability 

discrimination in places of public accommodation, see 42 U.S.C. 

§ 12182 ("Title III"), and retaliation for conduct protected under 

certain provisions of the ADA, including Title III, see 42 U.S.C. 
- 12 - 

§§ 12182(a), 12203(a) ("Title V"). The family also alleged common 

law claims of breach of contract, misrepresentation, and 

negligence against the Fay School and Gustavson, seeking damages 

and injunctive relief. 

Fay moved in limine to exclude the reports, opinions, 

and testimony of five of the family's expert witnesses, including 

Dr. Hubbuch. See G v. Fay Sch., Inc. by & through its Bd. of Trs., 

282 F. Supp. 3d 381, 389 (D. Mass. 2017). The family sought to 

introduce the evidence of Dr. Hubbuch to establish the existence 

of EHS and to establish G's particular diagnosis. After conducting 

nine days of Daubert hearings, see Daubert v. Merrell Dow Pharm., 

Inc., 509 U.S. 579, 592–93 (1993),4 the district court granted 

Fay's motion in part, and excluded Dr. Hubbuch's testimony. In so 

doing, the court explained that the doctor had failed to identify 

"a scientifically reliable basis linking the constellation of 

symptoms reported by G with EHS in order to 'rule in' that 

particular diagnosis" and had "failed to document or testify to 

 4 "[I]t is the responsibility of the trial judge to ensure 

that an expert is sufficiently qualified to provide expert 

testimony that is relevant to the task at hand and to ensure that 

the testimony rests on a reliable basis." Beaudette v. Louisville 

Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006). At a Daubert 

hearing, a judge evaluates the admissibility of expert testimony 

under the factors articulated by the Supreme Court in the Daubert 

decision: (1) whether an expert's theory or technique can and has 

been tested; (2) whether it has been subjected to peer review; (3) 

its error rate; and (4) its acceptance within the relevant 

discipline. See 509 U.S. at 593–94. 
- 13 - 

her efforts to identify and exclude other environmental factors at 

the [Fay] School that might cause or contribute to G's symptoms." 

G, 282 F. Supp. 3d at 391; see Fed. R. Evid. 702(d) (requiring 

that a qualified expert witness's testimony be based on reliable 

principles and methods properly applied to the facts of the case). 

 Fay then moved for summary judgment. The district court, 

noting that a Title V retaliation claim "does not depend on the 

success of [a plaintiff's] disability claim," denied summary 

judgment as to that claim, finding that the family had stated a 

prima facie case of retaliation. G, 282 F. Supp. 3d at 397 (quoting 

Jones v. Walgreen Co., 679 F.3d 9, 20 (1st Cir. 2012)). It granted 

the motion as to the family's other claims, concluding that (1) 

the family had failed to create a triable issue of fact as to G's 

disability, as required for the Title III disability 

discrimination claim; (2) the handbook terms that form the basis 

of the family's breach of contract claim are insufficiently 

definite to create a valid contract; (3) the record does not 

support a finding that Fay made a knowing misrepresentation to the 

family, as required for the family to prevail on its 

misrepresentation claim; and (4) the school fulfilled its ordinary 

duty of care to G by following federally established Wi-Fi safety 
- 14 - 

limits, negating any possible claim of negligence. Id. at 396-

97, 400-01.5 

The family moved for reconsideration of the court's 

order as to their misrepresentation and contract claims, and the 

school moved for judgment on the pleadings on the family's 

retaliation claim. The school argued that the retaliation claim 

became moot when G completed his ninth-grade year at another 

private school. The district court denied the family's motion for 

reconsideration, finding the family had failed to show "a manifest 

error of law." It granted the school's motion for judgment on the 

pleadings because (1) it determined that damages are not an 

available remedy for a Title V retaliation claim premised upon 

opposition to violations of Title III, and (2) the passage of time 

had rendered the family's claim for equitable relief moot. The 

family had sought an order prohibiting the school from retaliating 

against G, but G had successfully completed the ninth grade (the 

highest grade that the school offers) at another private school 

 5 The district court separately concluded that it must enter 

judgment against the family on the claims against Gustavson in his 

individual capacity. G, 282 F. Supp. 3d at 401. It found 

insufficient evidence that Gustavson benefited in any way from his 

participation in the allegedly tortious conduct of the school, as 

required to "pierce the corporate veil." Id. (citing Jones v. 

Experian Info. Sols., Inc., 141 F. Supp. 3d 159, 162 (D. Mass. 

2015)). The family does not address Gustavson's individual 

liability in its brief. The claims against Gustavson in his 

individual capacity are therefore waived. See Rodríguez v. 

Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011). 
- 15 - 

and there was "no reasonable anticipation that G [would] again be 

a student at the Fay School."

On appeal, the G family argues that judgment for the 

school on the Title V claim should be vacated. The family 

maintains that damages are an available remedy, and argues that, 

in any event, the claim is not moot because the family has a live 

equitable claim for nominal damages. The family also argues that 

summary judgment for Fay on the breach of contract and 

misrepresentation claims should be vacated. Asserting that the 

district court erroneously concluded that select terms of the 

handbook were not a valid contract, the family argues that there 

are triable issues of fact as to these claims. The family does 

not press for reversal of the district court's summary judgment 

for Fay on the negligence claim. Likewise, although the family's 

appeal initially sought review of the district court's judgment 

for the Fay School on the Title III claim, the family has since 

withdrawn its appeal as to that claim, conceding the claim's 

mootness. The Title III claim, which was purely equitable, became 

moot when G completed his ninth-grade year, the last year offered 

by the Fay School. 

II. 

We address first the family's appeal of the judgment for 

the Fay School on the Title V retaliation claim. Title V, 42 

U.S.C. § 12203(a), prohibits retaliation against an individual who 
- 16 - 

has opposed a practice made unlawful under Title III. The question 

at issue is what remedies are available to a plaintiff who alleges 

under Title V that he was retaliated against after opposing a 

practice made unlawful under Title III. Our review of this 

question of statutory interpretation is de novo. 

A. Statutory Background 

The ADA is a comprehensive disability rights statute; 

its subchapters, known as "titles," protect persons with 

disabilities in a variety of settings. See 42 U.S.C. § 12101. 

Title I protects "qualified individual[s] with [] disabilit[ies]" 

from discrimination in employment. Id. § 12112. As noted earlier, 

Title III prohibits disability discrimination in any place of 

public accommodation. See id. § 12182(a).6 In contrast to Title 

I, which protects only "qualified individuals," id. § 12112(a); 

see id. § 12111(8) (defining "qualified individual" as "an 

individual who, with or without reasonable accommodation, can 

perform the essential functions of the employment position that 

such individual holds or desires"), Title III applies to any 

individual with a disability, id. § 12182(a). Moreover, "public 

accommodation" is expansively defined and includes twelve 

 6 Titles II and IV of the ADA prohibit disability 

discrimination by public entities and in telecommunications, 

respectively. See 42 U.S.C. § 12132; 47 U.S.C. § 225. 
- 17 - 

categories of places, ranging from "service establishment[s]," 

such as a "dry-cleaner" or "bank," to "place[s] of public display 

or collection," such as a "museum [or] library." Id. § 12181(7). 

Of particular relevance to this case, the term includes "place[s] 

of education," such as private secondary schools. Id. 

§ 12181(7)(j). 

Although Title III is expansive in its application, the 

remedies available under the title are narrow. Section 12188(a)(1) 

provides the remedial scheme for that title by incorporating the 

remedies available under Title II of the Civil Rights Act, see 42 

U.S.C. § 12188(a)(1), which allows a "person aggrieved" to 

institute "a civil action for preventive relief, including an 

application for a permanent or temporary injunction, restraining 

order, or other order," 42 U.S.C. § 2000a–3(a). We have stated 

that, "[b]y the plain terms of that provision, . . . damages for 

past harms are not available." Goodwin v. C.N.J., Inc., 436 F.3d 

44, 51 (1st Cir. 2006). The only relief that is available is 

"preventive" injunctive relief. See id. 

By contrast to Titles I or III, Title V does not protect 

disabled persons in a particular setting; instead, it includes an 

anti-retaliation provision, 42 U.S.C. § 12203(a)-(b),7 that 

 7 Title V also includes technical provisions, such as a rule 

of construction, see 42 U.S.C. § 12201, and a rule of severability, 

see id. § 12213. 
- 18 - 

protects individuals who exercise their rights under Titles I, II, 

or III from retaliation. A Title V claim of retaliation thus must 

allege conduct protected under one of those earlier titles, and a 

retaliatory response to that protected conduct. See OliverasSifre v. P.R. Dep't of Health, 214 F.3d 23, 26 (1st Cir. 2000). 

Section 12203(c) specifies the remedies available under 

Title V by reference to Titles I, II, and III. It states: 

The remedies and procedures available under 

sections 12117, 12133, and 12188 of this title 

shall be available to aggrieved persons for 

violations of subsections (a) and (b) of this 

section, with respect to subchapter I, subchapter 

II and subchapter III of this chapter, 

Respectively. 

42 U.S.C. § 12203(c) (emphasis added). Sections 12117, 12133, and 

12188, in turn, provide the separate remedial schemes for Titles 

I, II, and III. See id. § 12117 (providing the remedial scheme 

for Title I, which concerns disability discrimination in the 

workplace); id. § 12133 (providing the remedial scheme for Title 

II, which concerns disability discrimination in public services); 

id. § 12188 (providing the remedial scheme for Title III, which 

concerns disability discrimination in places of public 

accommodation). 

At issue is the meaning of that remedial scheme. The 

family argues that any remedy or procedure available under sections 
- 19 - 

12117, 12133, or 12188 is available for the retaliation claim.8 

Section 12117, Title I's enforcement provision, allows damages 

claims. See 42 U.S.C. §§ 12117(a), 1981(a)(2). Conversely, the 

school argues that, because the family's Title V claim is premised 

upon the family's exercise of rights under Title III, only the 

remedy set forth in section 12188 (Title III's enforcement 

provision, which provides only for injunctive relief) applies. 

B. Analysis 

"Where, as here, an issue turns on a question of 

statutory construction, 'the beginning point must be the language 

of the statute.'" Goodwin, 436 F.3d at 50 (quoting Riva v. 

Massachusetts, 61 F.3d 1003, 1007 (1st Cir. 1995)). "We assume 

that the words Congress chose, if not specially defined, carry 

their plain and ordinary meaning." In re Hill, 562 F.3d 29, 32 

(1st Cir. 2009). If that meaning produces a plausible, unambiguous 

result, our inquiry is ordinarily at an end. See United States v. 

Gordon, 875 F.3d 26, 33 (1st Cir. 2017). 

Looking to the plain language of § 12203(c), we find 

that the remedies available to the family are those set forth in 

§ 12188 (the Title III remedial provision), and do not include 

 8 The Fay School argues that the family did not request 

damages, nominal or otherwise, in connection with the retaliation 

claim before the district court. We assume arguendo, and favorably 

to the family, that it adequately preserved the issue of damages 

and nominal damages for the retaliation claim. 
- 20 - 

those provided for in § 12117 (the Title I remedial provision), or 

§ 12133 (the Title II remedial provision). We might conclude 

otherwise if § 12203(c) ended: "The remedies . . . under sections 

12117, 12133, and 12188 . . . shall be available to aggrieved 

persons for violations of subsections (a) and (b) of this section." 

Instead, the provision continues, " . . . with respect to 

subchapter I, subchapter II and subchapter III of this chapter, 

respectively." 42 U.S.C. § 12203(c) (emphasis added). We 

interpret "respectively" in § 12203(c) as it is commonly 

understood. See United States v. Cortés-Cabán, 691 F.3d 1, 17 

(1st Cir. 2012). The commonly understood meaning of "respectively" 

is "in precisely the order given." Respectively, Random House 

Webster's Unabridged Dictionary (2d ed. 1997); see also 

respectively, Macmillan Dictionary (online ed.), 

https://www.macmillandictionary.com/us/dictionary/american/respec

tively ("used for saying that something happens separately to each 

of the people or things mentioned in the order in which they were 

mentioned"). When "respectively" is used to describe "two or more 

items" it ordinarily indicates that "each [thing] relat[es] to 

something previously mentioned, in the same order as first 

mentioned." respectively, Cambridge English Dictionary (2019), 
- 21 - 

https://dictionary.cambridge.org/us/dictionary/english/respective

ly. 

Applying this common meaning, the "respectively" 

language in § 12203(c) indicates that the remedies in §§ 12117, 

12133, and 12188 apply separately and in the order stated "with 

respect to [Title] I, [Title] II and [Title] III of this chapter." 

42 U.S.C. § 12203(c). Given this reading, a different set of 

remedies is available under Title V for retaliation depending upon 

the discriminatory practice opposed -- the remedies specified in 

§ 12117 (Title I's enforcement provision) apply when the basis is 

Title I, the remedies in § 12133 (Title II's enforcement provision) 

apply when the basis is Title II, and the remedies in § 12188 

(Title III's enforcement provision) apply when the basis is Title 

III. 

Because here the underlying practice that was opposed is 

disability discrimination in a place of public accommodation, 

which is prohibited by Title III, see 42 U.S.C. § 12182(a), we 

look to Title III's enforcement provision, § 12188, to determine 

which remedies are available for the family's retaliation claim. 

See 42 U.S.C. § 12188(a)(1). As noted, those remedies are "[t]he 

remedies and procedures set forth in section 2000a-3(a)," the 

remedies provision of Title II of the Civil Rights Act, which does 
- 22 - 

not provide for compensatory damages. Id.; see 42 U.S.C. § 2000a3(a). 

To adopt the family's interpretation that all of the 

remedies in Titles I, II, and III are available to enforce a 

retaliation claim -- including damages, regardless of the basis of 

the retaliation, would render the "respectively" language in 

§ 12203(c) superfluous. Such an interpretation is at odds with 

the basic interpretive canon that a statute ought to be construed 

so that "effect [is given], if possible, to every clause and word 

of a statute" so that "no clause, sentence, or word [is made] 

superfluous, void, or insignificant." Duncan v. Walker, 533 U.S. 

167, 174 (2001) (internal quotation marks omitted). 

We also reject the family's argument that interpreting 

§ 12203(c) to exclude compensatory damages as an available remedy 

for the Title V claim "would be contrary to legislative intent and 

the scheme of the ADA."9 To the contrary, Congress chose to allow 

a plaintiff to recover only injunctive relief for a discrimination 

 9 The family cites several decisions of other circuit courts 

to support its interpretation of Title V's remedies provision. 

Those cases, however, concern the availability of damages for a 

retaliation claim premised upon conduct protected under Title 

I -- not Title III. See, e.g., Salitros v. Chrysler Corp., 306 

F.3d 562, 569-70 (8th Cir. 2002) (reasoning that there was 

sufficient evidence that the plaintiff engaged in protected 

activity and was retaliated against in the employment context such 

that a jury award of damages was proper). 
- 23 - 

action brought under Title III. Goodwin, 436 F.3d at 49–51; see 

also Ruth Colker, ADA Title III: A Fragile Compromise, 21 Berkeley 

J. Emp. & Lab. L. 377, 377–78 (2000) (explaining that "the broad 

coverage of ADA Title III came at a price . . . . In return for 

a broad list of covered entities, civil rights advocates agreed to 

a limited set of remedies"). Interpreting Title V's remedies 

provision as providing only injunctive relief for a Title V claim 

premised upon opposition to violations of Title III is thus 

entirely consistent with the scheme of the ADA. 

Finally, the family's claim for nominal damages under 

Title V fares no better. The applicable enforcement provision, 

§ 12188, allows only forward-looking, injunctive relief. Goodwin, 

436 F.3d at 51 (concluding restitution is not an available remedy 

under Title III because it is a "retrospective remedy"). Nominal 

damages recognize a past wrong by providing plaintiffs "the moral 

satisfaction of knowing that a federal court concluded that [their] 

rights ha[ve] been violated in some unspecified way." Farrar v. 

Hobby, 506 U.S. 103, 114 (1992). They do not "fit into the taxonomy 

of 'preventive relief,' which is the only type of relief authorized 

by section 12188(a)(1)." Goodwin, 436 F.3d at 51. 

Accordingly, judgment for the school on the family's 

Title V claim was properly granted. G's completion of the ninth 
- 24 - 

grade has mooted the claim for preventive injunctive relief, the 

only relief available to the family under that title. 

III. 

We now turn to the family's appeal from summary judgment 

on the breach of contract and misrepresentation claims. 

Massachusetts substantive law governs these claims. See Cloud v. 

Trs. of Bos. Univ., 720 F.2d 721, 724 (1st Cir. 1983); see also 

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 

We review a grant of summary judgment de 

novo. Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 

(1st Cir. 2018). "We do this while 'drawing all reasonable 

inferences in favor of the non-moving party.'" Doe v. Trs. of 

Bos. Coll., 892 F.3d 67, 79 (1st Cir. 2018) (quoting Roman Catholic 

Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st 

Cir. 2013)). Summary judgment is proper only when "there is no 

genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law." Fed. R. Civ. P. 56(a). 

A. Breach of Contract 

The breach of contract claim is based on certain terms 

in the school's 2014/2015 handbook, which the family says formed 

a valid and binding contract between the school and G. To prevail 

on a breach of contract claim, a plaintiff must first show "that 

the parties reached a valid and binding agreement," such that a 

contract is formed. Coll v. PB Diagnostic Sys., Inc., 50 F.3d 
- 25 - 

1115, 1122 (1st Cir. 1995). Such an agreement may be memorialized 

in a student handbook. See Mangla v. Brown Univ., 135 F.3d 80, 83 

(1st Cir. 1998); Driscoll v. Bd. of Trs. of Milton Acad., 873 

N.E.2d 1177, 1185 (Mass. App. Ct. 2007); see also Cloud, 720 F.2d 

at 724 (concerning contract claims based upon a university handbook 

under Massachusetts law). To determine whether select terms of a 

student handbook are contractually enforceable, Massachusetts 

courts employ "the standard of 'reasonable expectation,'" that is, 

"what meaning the party making the manifestation . . . should 

reasonably expect the other party to give [the terms]." Driscoll, 

873 N.E.2d at 1185 (alteration in original) (quoting Schaer v. 

Brandeis Univ., 735 N.E.2d 373, 378 (Mass. 2000)). Vague and 

generalized representations are not contractually enforceable. 

See Santoni v. Fed. Deposit Ins. Corp., 677 F.2d 174, 179 (1st 

Cir. 1982); Blair v. Cifrino, 247 N.E.2d 373, 376 (Mass. 1969). 

On appeal, the family argues that certain terms of the 

handbook constitute a sufficiently definite and certain agreement 

between the family and the school to be contractually enforceable. 

The family points to five pages of the 2014/2015 handbook, 

asserting that certain statements, "when read together," form a 

contract between the family and the school. These pages contain, 

among other things, a general statement of the Fay School's "core 

values" (e.g., "Honesty, respect, responsibility, empathy, and 

kindness inform our conduct," "Mutual respect and civility are a 
- 26 - 

central aspect of healthy communities," and "All members of the 

Fay community are committed to making a positive difference in the 

world") and aspirational diversity statements (e.g., "We expect 

all members of the community to respect the rights of others and 

to behave appropriately at all times" and "Fay seeks to serve as 

a resource for understanding"). Without diminishing the 

importance of these words, they are exactly the sort of 

generalized, aspirational statements that are insufficiently 

definite to form a contract. See Shin v. Mass. Inst. of Tech., 

No. 020403, 2005 WL 1869101, at *7 (Mass. Super. Ct. June 27, 2005) 

(distinguishing well-defined procedures and policies, which can 

form contractual promises, from "generalized representations," 

which cannot). 

Although acknowledging that the handbook includes some 

"aspirational statements" too indefinite to form a contractual 

promise, the family argues that select portions of the handbook 

are "sufficiently specific for reliance and thus for enforcement 

as contract promises." Specifically, the family argues that the 

statements that the Fay School would "help," "work with," and 

"respect" students "in physical need" are sufficiently definite 

statements to form a contract. Those specific statements, however, 

do not appear in the handbook pages cited by the family. See In 

re New Seabury Co. Ltd. P'Ship, 450 F.3d 24, 35 (1st. Cir. 2006) 

(explaining that "[c]ourts will not read language into a contract 
- 27 - 

where it does not appear").10 If the handbook did contain such 

language, a vague promise to "help" or "work with" students "in 

need" is not a "sufficiently definite promise to justify reasonable 

reliance." Santoni, 677 F.2d at 179. In short, the family fails 

to identify terms in the handbook that are sufficiently definite 

and certain to form a binding contract. This understanding is 

reinforced by the enrollment contract that G's parents signed, 

which specifically states that the handbook "set forth general 

expectations regarding the Students' enrollment at the School," 

but "does not constitute a contract between [them] and the School." 

Summary judgment on the contract claim was therefore properly 

granted. 

 

10 The family's brief states: 

[The family] relied upon . . . the assurance that Fay would 

help when students are "in physical need," "work with," and 

"respect" any such student. Certainly, when read together, 

these were specific enough to create [reasonable reliance]. 

The family cites pages of the handbook for support. Those pages 

include scattered references to "respect." ("[R]espect . . . 

inform[s] our conduct."; "Mutual respect and civility are central 

aspects of healthy communities."; "[W]e . . . [f]oster close 

relationships based on dignity and respect."). Additionally, the 

pages contain the statement that "Fay [] students . . . [s]eek 

help when they are in . . . physical need." These statements are 

not equivalent to the specific promises alleged by the family -- 

that the school will work with or help students in physical need. 
- 28 - 

B. Misrepresentation 

To prevail on the misrepresentation claim, the family 

must show that Fay made a false statement of material fact with 

knowledge of its falsity, which the family members reasonably 

relied on to their detriment. See Eureka Broadband Corp. v. 

Wentworth Leasing Corp., 400 F.3d 62, 68 (1st Cir. 2005) (citing 

Russell v. Cooley Dickinson Hosp., Inc., 772 N.E.2d 1054 (Mass. 

2002)); see also Cummings v. HPG Int'l, Inc., 244 F.3d 16, 23 (1st 

Cir. 2001) ("The issue is whether, at the time [the defendant] 

made the statements, [the defendant] knew that the statements were 

false.").11 The family bases the misrepresentation claim on the 

same 2014/2015 handbook language upon which it bases the breach of 

contract claim. See Br. for Family at 41 (citing the language 

"quoted above" as the basis for the misrepresentation claim). We 

agree with the district court that the family has failed to raise 

a triable issue of fact as to whether Fay knowingly made false 

statements in its handbook. 

 11 The district court treated the family's misrepresentation 

claim as a claim of willful or reckless misrepresentation, which 

requires a knowing scienter. See O'Connor v. Merrimack Mut. Fire 

Ins. Co., 897 N.E.2d 593, 600 (Mass. App. Ct. 2008). By contrast, 

a claim of negligent misrepresentation requires only a showing 

that a statement was made with a failure to exercise "reasonable 

care." Id. (quoting Nota Constr. Corp. v. Keyes Assocs., Inc., 

694 N.E.2d 401, 405 (Mass. App. Ct. 1998)). On appeal, the family 

does not argue that its claim should be treated as a claim of 

negligent misrepresentation, and it agrees that the necessary 

scienter for the claim is "knowledge of falsity." 
- 29 - 

The 2014/2015 handbook states, "[R]espect, 

responsibility, empathy, and kindness inform our conduct."12 The 

family argues that the contrast between this language of "respect" 

and "kindness" and the "mocking response" of school staff members, 

see supra Section I ("Blahahahahahaha"), is so egregious that it 

is evidence that the school knew that its handbook statements were 

false when the handbook was issued. 

In context, the stray email comments, although perhaps 

dismissive or derisive, do not raise a triable issue of fact as to 

Fay's knowledge of falsity of its handbook representations. To 

the contrary, the school demonstrated receptiveness to Mother's 

concerns by examining Wi-Fi levels, confirming their safety, and, 

even without receiving full documentation of G's disability, 

altering its system of instruction and classroom orientation to 

accommodate G. 

The family also argues that the handbook's "disclaimer" 

of contract liability, see supra Section I, is a sufficient basis 

 12 We have doubts that these sorts of aspirational statements 

could support a misrepresentation claim. See Cummings, 244 F.3d 

at 21 ("There is an important threshold determination for any 

misrepresentation claim . . . . [O]nly statements of fact are 

actionable."); McEneaney v. Chestnut Hill Realty Corp., 650 N.E.2d 

93, 96 (Mass. App. Ct. 1995) (statements concerning "matters of 

judgment" or "value" are not actionable for misrepresentation) 

(quoting Restatement (Second) of Torts § 538A (1977)). However, 

neither party argues about the nature of the language, and we 

therefore do not consider that question. 
- 30 - 

for a reasonable factfinder to conclude that Fay knew that the 

statements in its handbook were false when the handbook was issued. 

The family points to an article, written by the Fay School's lawyer 

in 2013, recommending that schools include such a disclaimer in 

their student handbooks because "carefully crafted disclaimer 

language may help your school avoid a claim that the handbook 

constitutes a contract between the school and its students." The 

family argues that this article is evidence that the school 

included a disclaimer in its student handbook because it knew that 

the statements in the handbook were false when the handbook was 

issued. But the family offers no evidence that anyone at the 

school ever saw or knew about that article. Moreover, the 

document, of questionable relevance, is unauthenticated, and 

therefore inadmissible at the summary judgment stage. See Carmona 

v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000) ("Documents supporting 

or opposing summary judgment must be properly authenticated."). 

The family offers no further evidence of the school's motivations 

for including a legal disclaimer in its handbook. The family 

cannot fend off summary judgment with "conclusory allegations 

[and] unsupported speculation." Rogan v. City of Bos., 267 F.3d 

24, 27 (1st Cir. 2001).13 

 13 The G family also appeals from the district court's 

exclusion of Dr. Hubbuch's testimony. See G, 282 F. Supp. 3d at 

391. Although the family concedes the mootness of the 

accommodation claim, it argues that the testimony is not moot 
- 31 - 

IV. 

For the foregoing reasons, we affirm the district 

court's entry of judgment for Fay. 

So ordered. 

 

because the testimony is relevant to the other claims. However, 

even if there was some relevance to that testimony before this 

appeal, the testimony is no longer relevant in light of this 

decision, affirming the entry of judgment on the family's remaining 

claims for reasons wholly unrelated to causation.