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Special Education Law
DECISIONDistrict PrevailedRIDE Case No. 21-033A

MS. DOE, individually and as parent and next friend of STUDENT C. DOE v. COVENTRY PUBLIC SCHOOLS

November 16, 2021·Anthony F. Cottone·Coventry

STATE OF RHODE ISLAND

COMMISSIONER OF EDUCATION

MS. DOE, individually and as parent and next friend of STUDENT C. DOE

v.

COVENTRY PUBLIC SCHOOLS

RIDE No. 21-033A

DECISION AND ORDER

Held: Petitioner, not satisfied with a school district’s grant of a medical exemption from the state face mask mandate that enabled her daughter, a five-year-old kindergarten student with an IEP, to (1) use the kindergarten bathroom, (2) eat breakfast in the cafeteria, and (3) take the regular bus with other students, requested an order to prohibit the district from continuing to require that her daughter remain six (6) feet apart from other children while in school without a face mask, which request was denied by the Commissioner who found that the district had gone as far as it reasonably could to accommodate the Petitioner’s daughter in the complete absence of evidence as to whether the additional accommodation requested would pose a heightened health risk either to the Petitioner’s daughter or other students.

I. INTRODUCTION

On November 1, 2021, Ms. Doe, individually and as parent and next friend of Student C. Doe (“Doe”), filed a Complaint and Petition for Interim Order Relief seeking to prohibit the Respondent, Coventry Public Schools (“CPS”), from mandating that Doe – a five-year-old kindergarten student with an individual education program (“IEP”) pursuant to the federal Individuals with Disabilities Education Act (the “IDEA”) – comply with state law by wearing a face mask and remaining six (6) feet apart from other children while in school.

The case illustrates the hard choices facing many parents of differently abled children during the pandemic, as well as the dilemma confronting well-intentioned school officials who, while seeking to ameliorate the particularly harmful impact that the pandemic has had upon many special education students, must at the same time comply with applicable law and keep all children safe. The case also raises legal issues of first impression concerning: (1) the Commissioner’s jurisdiction over a petition that joins a facial claim under the IDEA, which normally is subject to certain federally-mandated dispute resolution procedures, with a state law discrimination claim; as well as (2) the contours of a school district’s duty to accommodate a differently abled student while complying with executive orders mandating the universal wearing of face masks in schools.

II. FACTS

The material facts are not in dispute, and the following recitation was deduced from the testimony and documentary evidence submitted at the hearing before the undersigned Hearing Officer on November 9 and 10, 2021, which, by stipulation, was conducted virtually via Zoom and recorded.[1]

  1. Doe is a five-year-old kindergarten student at Western Coventry Elementary School (the “School”) and she has a ten-year-old sister who is enrolled in fifth grade at the School.

  2. Doe had an in-utero stroke and sustained a right-sided traumatic brain injury and cerebral palsy, which has resulted in overall global delays, delays in gross and fine motor development and speech, as well as a lack of saliva control and difficulty maintaining proper body temperature.

  3. Prior to enrolling in kindergarten for the 2021-2022 school year at the School, Doe attended Stork’s Nest Child Academy in Smithfield and the Westwood YMCA Summer Camp in Coventry, and according to Ms. Doe, Doe was not required to wear a face mask at any time or limited in her activities, either at her pre-school or summer camp.[2]

  4. During the Spring of 2021, Ms. Doe met with various School officials to discuss Doe’s IEP for the upcoming school year, and although Ms. Doe made clear to the IEP Team that Doe’s medical issues precluded her from wearing a face mask, the Team decided to defer addressing the face mask issue with the hope that wearing face masks would not be necessary during the 2021-2022 school year.[3]

  5. On August 19, 2021, Governor Daniel J. McKee singed Executive Order (“E.O.”) 21-87, which provided, in pertinent part, that local educational agencies (“LEAs”):

    that have not adopted a universal indoor masking requirement shall be required to abide by a universal indoor masking protocol developed by the Rhode Island Department of Health (RIDOH). The RIDOH protocol shall require universal indoor masking by all students (age 2 and older), staff, teachers, and visitors to K- 12 schools.

    Id. (Respondent’s Exhibit 6). E.O. 21-87 took effect immediately and was to remain in full force and effect through September 18, 2021 unless renewed, modified or terminated by a subsequent E.O. Id.[4]

  6. On August 25, 2021, Ms. Doe asked School Principal Dr. Kristin Bagley (the “School Principal”) for information on the medical mask exemption process in effect at the School. She was informed that she first needed to provide a letter from Doe’s doctor documenting the medical reason that precluded Doe from wearing a mask, and then would be contacted as to next steps.

  7. On September 23, 2021, the Rhode Island Department of Health (“RIDOH”) promulgated emergency regulations implementing the Governor’s school face mask mandate. See RIDOH Regulations, 216 RICR 20-10-7.1, et seq. In addition, RIDOH provided comprehensive guidance for LEAs with respect to face masks and responses to outbreaks of COVID-19. See Outbreak Response Protocols: Pre K-12, Guidance for COVID-19 outbreak response in Pre K-12 schools (Version 7.1, updated October 28, 2021) (Respondent’s Exhibit 8) (referred to by the parties as the “RIDOH Playbook”).

  8. Ms. Doe did not receive the requested letter from Doe’s doctor (Colleen Powers, M.D. of Kingstown Pediatrics, Inc.) until on or after September 13, 2021. See Petitioner’s Exhibit 1. Thus, on the first day of school (September 2, 2021), Ms. Doe sent Doe to school with a face mask in compliance with E.O. 21-87.

  9. Ms. Doe testified that Doe complained that she could not breathe while wearing a face mask at the School, and added that as a result of wearing the mask, Doe became overheated, had significant nose bleeds and lost her appetite.

  10. On September 15, 2021, Ms. Doe presented the letter from Dr. Powers (Petitioner’s Exhibit 1) to the School. The letter provided, in pertinent part: “Please be advised that [Doe] should be exempt from wearing a mask due to the inability to put her mask on/off independently, cerebral palsy and global delays.” Id.[5]

  11. The School informed her that the letter was “insufficient, and that there was a series of questions that had to be answered by the pediatrician in order to move forward,” and CSP’s certified nurse-teacher, Emile Cunningham Joost (the “School Nurse”), sent various releases home with Doe’s older sister to enable the School to communicate with Doe’s medical team.[6] Ms. Doe testified that in response, she wrote Dr. Powers and explained that the School wanted answers to certain questions.[7]

  12. On or about September 21, 2021, Ms. Doe received and produced a second letter from Dr. Powers which provided, in pertinent part, that, “[Doe] is unable to put the mask on herself. She also has difficulties with oral secretion with a mask on. For those reasons she is unable to wear a mask at anytime.” See Petitioner’s Exhibit 3.

  13. Ms. Doe also obtained a letter from Doe’s pediatric neurologist, Maria C. Younes, M.D., dated September 20, 2021, which she also presented to the School and which provided that:

    [Doe] is a patient whom I have been following in my office since April 2019. She is a 5-year-old girl who carries diagnoses of right hemisphere stroke in utero, left hemiparesis, and speech and language delays.

    Due to her medical diagnosis, please exempt [Doe] from wearing a mask at school, any school activities and on the bus. She is not able to wear a mask at all.

    [Doe’s] parents should continue to monitor for COVID-19 symptoms and ensure that she is not sent to school with any symptoms to prevent a situation where she could spread COVID-19 to her classmates.

    Id. (Petitioner’s Exhibit 2).[8]

  14. The School again informed Ms. Doe that the letters from Dr. Powers and Dr. Younes were not sufficient and reiterated its request that Ms. Doe sign a consent form so that the School could speak with Doe’s doctors and ask specific questions related to mask wearing and explore possible ways to accommodate Doe’s medical issues.

  15. However, Ms. Doe refused to sign the proffered consent form, claiming that Doe’s physicians had been clear that a face mask could not be worn by Doe “at any time under any circumstances,” and that therefore further discussion with Doe’s medical care providers was not necessary. An IEP Team meeting was scheduled for September 30, 2021.

  16. Although Doe had been riding the bus to the School since opening day without wearing a mask, Ms. Doe received an email from the School Principal on September 29 advising her that effective immediately, Doe would no longer be allowed to ride the bus without a mask due to the “federal public transportation mandate.”

  17. On January 29, 2021, the Center for Disease Control and Prevention (the “CDC”) had, in fact, issued an order (the “CDC Order”) mandating that face masks be worn by all people while on public transportation,[9] which the CDC advised “includes passengers 2 years of age and older and drivers must wear a mask on buses or vans operated by public or private school systems including early care and education/child care programs, subject to the exclusions and exemptions in CDC’s Order.”[10]

  18. On September 30, 2021, Ms. Doe attempted to put Doe and her sister on their regular school bus, but was told by the bus driver that he had been instructed that Doe was no longer allowed on the bus unless she wore a mask. Ms. Doe declined to put a face mask on Doe and thus Doe was, and continues to be, driven to the School by her family.

  19. At the September 30 IEP Team meeting, the School agreed that Doe had satisfied the requirements for a medical exemption with respect to the School setting, but not with respect to transportation, which, according to Ms. Doe, the School claimed was not subject to any exceptions.[11] However, the School did offer to provide a single-rider special education bus for Doe, an offer which Ms. Doe testified that she rejected as “discriminatory,” claiming that it was “cruel and unusual” to separate Doe from her sister and other students.

  20. In addition, the School setting exemption provided by the School was subject to certain caveats, including that Doe:

    1. would be required to always remain six (6) feet away from all children at all times while in the School building; and
    2. could no longer use the kindergarten bathroom, which evidently is designed to accommodate one student at a time, and would need an adult escort when using the larger bathroom to ensure that it was unoccupied.

  21. Ms. Doe testified that these caveats effectively prevented Doe from interacting with other students or engaging in collaborative work with her peers, and noted that she had been advised by her daughters that Doe was prevented from joining other students in the cafeteria during breakfast.

  22. Following the IEP Team meeting on September 30, the School Nurse contacted RIDOH to determine whether there were other permissible methods to accommodate some of Ms. Doe’s concerns. As a result of this communication, CPS agreed that with certain safeguards involving the time of exposure and allowable space between students, Doe would now be able to: (a) use the kindergarten bathroom; (b) eat breakfast in the cafeteria; and (c) take the regular bus with other students.

  23. However, Ms. Doe still believed that implementation of the six-foot requirement in other contexts at the School prevented Doe from interacting with other students or engaging in collaborative work with her peers, and thus its continued enforcement was discriminatory in violation of federal and state law.

  24. Ms. Doe contacted the Legal Office at the Department of Elementary and Secondary Education (“RIDE”) on September 30, 2021, and requested an emergency hearing to appeal the decisions that had been made by the School relative to the face mask requirement. She claimed that she was told by the Legal Office that before a hearing could be held before RIDE’s Commissioner, Ms. Doe would have to exhaust available local remedies before the CPS Superintendent and the Coventry School Committee.

  25. Ms. Doe advised both the School IEP Team and the bus company retained by CPS that medical exemptions to the face mask requirement were recognized by the CDC and should be provided to Doe. She also attempted to appeal to members of the School Committee, and testified that the one Committee Member she was able to contact responded by deferring to the Superintendent.

  26. On October 1, 2021, the School Principal advised Ms. Doe by email that, “If you disagree with the decision of the IEP team, you may appeal the decision to the Office of Student, Community, and Academic Supports at the Rhode Island Department of Education in care of kerri.sorenson@ride.ri.gov.” See Respondent’s Exhibit 4.

  27. An IEP Team meeting was scheduled for October 4, 2021, and in the invitation to Ms. Doe the School Principal noted that it was being scheduled “so that you can invite [Doe’s] medical professionals to the Zoom per our conversation in the IEP meeting of 9/30,” see Respondent’s Exhibits 4 and 5, despite the fact that Ms. Doe had previously refused to sign releases to facilitate such conversations. In any event, Ms. Doe had to cancel the scheduled meeting due to a medical emergency, and it was not rescheduled.

  28. Ms. Doe was informed by the School Principal on October 11, 2021 that a student in Doe’s classroom had tested positive for COVID-19, and as a result, the entire class had to quarantine.

  29. Ms. Doe testified that Doe’s thoughts and mood towards the School have been increasingly negative, that Doe has told her that the School feels “very lonely,” and that Doe reports that she feels “sad” when told by teachers to “back-up and preserve space.” As a result, Ms. Doe has obtained mental health counseling for Doe.

  30. On October 15, 2021, Governor McKee signed E.O. 21-103 extending E.O. 21-87, which required face masks in schools, through November 13, 2021, and on October 26, 2021, Governor McKee signed E.O. 21-105 which mandated that:

    1. Except as provided in paragraph 4, below,[12] any fully vaccinated[13] person (a) who has been in known close contact (within 6 feet for more than 15 minutes within a 24-hour period) with a person who has been clinically diagnosed with COVID-19 by a licensed health care practitioner by assessment of symptoms or by laboratory testing or (b) who has been contacted by RIDOH to inform them that they were a close contact with a confirmed positive case must get tested 5-7 days after the date of exposure and wear a mask in public indoor settings for 14 days or until he or she receives a negative test result. All fully vaccinated individuals who fall within category (a) or (b) of this paragraph must self-monitor for symptoms of COVID-19 for 14 days following close contact.

    2. Any person who is not fully vaccinated and falls within category (a) or (b) in paragraph 2 of this Order (‘non-fully vaccinated close contact’) must get tested immediately after being identified as a close contact and, if negative, get tested again 5-7 days after last exposure or immediately if symptoms develop during quarantine. All non-fully vaccinated close contacts must self-monitor for symptoms of COVID-19 for 14 days following close contact. All non-fully vaccinated close contacts must immediately self-quarantine for 10 days following the close contact unless one of the following exemptions applies:

    * * *

    1. (i) the person is a pre K-12 student, (ii) the infected person with whom the person was in close contact is also a pre K-12 student, (iii) the close contact occurred inside a pre K-12 classroom or structured outdoor pre K-12 setting where mask use can be observed (i.e., holding class outdoors with educator supervision), (iv) both students wore face masks at all times while they were in close contact; and (v) the students were at least 3 feet apart from each other at all times when they were in close contact . . .

    See E.O. 21-105 (Respondent’s Exhibit 7) at 2-3 (emphasis added).

  31. Assistant CPS Superintendent Don Cowart testified that all kindergarten classes in the CPS were being broken down into “pods” of two (2) to three (3) children each for the bulk of the school day, thus limiting the number of children to which any child would be exposed and hopefully decreasing the number of children that would have to quarantine in the event of a positive case.

  32. On November 12, 2021, the Superior Court denied a request by thirty-five (35) parents from a dozen communities to enjoin enforcement of the state’s mask mandate in schools, and in so doing, the Court affirmed the legality of the E.O. imposing the mandate, as well as of RIDOH’s emergency regulations. See Richard Southwell, et al. v. Daniel J. McKee, C.A. No. PC 2021-05915, slip op. at 25-26, 33, 46-47 (Superior Court, November 12, 2021) (Lanphear, J.).[14]

III. POSITIONS OF THE PARTIES

1. Petitioner

Ms. Doe argued that besides being “unconscionably cruel,” CPS failed to provide Doe with a free appropriate public education (a “FAPE”) in violation of the IDEA, while also discriminating against Doe in violation of the state’s Civil Rights of People with Disabilities Act (the “CRPDA”), R.I. Gen. Laws § 42-87-1 et seq. See Petition at 1, ¶ 28 at 6.

As to the Commissioner’s jurisdiction, Ms. Doe argued that “[n]o special education due process hearing has been convened or even requested,” and “the gravamen” of Petitioner’s request “is disability discrimination, not the appropriateness of the IEP or the denial of FAPE.” See Petitioner’s Memorandum Regarding Jurisdiction dated November 10, 2021, at 2. And she noted that the CRPDA expressly confers jurisdiction over disability discrimination claims “in the area of elementary and secondary education” upon the Commissioner, citing R.I. Gen. Laws § 42-87-3(5).[15]

As to the merits, Ms. Doe suggested that CPS had failed to establish why imposing the face mask requirement upon Doe was necessary, which was itself evidence of illegal discrimination against her daughter. In addition, she claimed that the RIDOH Playbook was mere guidance and of no legal relevance.

Finally, although the CPS had addressed several of the complaints in Ms. Doe’s Petition by allowing Doe to: (a) use the kindergarten bathroom; (b) eat breakfast in the cafeteria; and (c) take the regular bus with other students, Ms. Doe argued that CPS was still causing Doe emotional harm by continuing to enforce six (6) feet of space between Doe and other students when Doe was without a face mask, which allegedly prevented Doe from interacting with other students or engaging in collaborative work with her peers.

2. Respondent

As to the jurisdictional issue, CPS argued that jurisdiction was lacking since the gravamen of the Petition is a denial of FAPE, and thus Doe’s state law claims are subject to the IDEA’s administrative exhaustion requirement. CPS also emphasized that the relevant language in the E.O. mandating face masks applied only to schools.

Alternatively, CPS argued that it had, in fact, granted the requested exemption from the face mask requirement and did everything reasonably necessary to accommodate Doe’s disability. CPS also argued that under revised quarantine rules, see § II, ¶ 30, supra at 10 (quoting E.O. 21-105), the mere presence of a child without a face mask in a classroom would lengthen the mandatory quarantine time in the event any student were to test positive, and thus increase potential learning loss.

IV. DECISION[16]

1. The Jurisdictional Question

The First Circuit has noted that the IDEA:

provides an administrative process for parents to challenge their child’s IEP or its implementation. This process begins with a preliminary meeting or mediation with the child’s IEP team, and, if the dispute remains unresolved, progresses to a ‘due process hearing’ before an impartial hearing officer. 20 U.S.C. § 1415(b)-(f). Such officer may grant relief based upon ‘a determination of whether the child received a [FAPE].’ Id. § 1415(f)(3)(E)(i). Before a parent sues a school under the IDEA, she must first ‘exhaust [the] administrative remedies through the due process hearing [provided for by the IDEA].’ Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000); see 20 U.S.C § 1415(i)(2)(A).

Doucette v. Georgetown Pub. Sch., 936 F.3d 16, 22 (1st Cir. 2019); see also Doe v. East Greenwich School Dep’t., 899 A.2d 1258, 1265-66 (R.I. 2006) (describing IDEA’s due process procedures). And significantly, under federal law and state regulation, the impartial hearing officer assigned to conduct a due process hearing under the IDEA cannot be “[a]n employee of [RIDE] or the LEA that is involved in the education or care of the child.” See 34 C.F.R. § 300.511(c)(1)(i)(A); see also Regulations Governing the Education of Children with Disabilities, 200-RICR- 20-30-6.8.1(L).

Here, as noted, although Ms. Doe has made a facial claim under the IDEA, she has not filed a due process complaint or otherwise complied with the dispute resolution procedures mandated under the IDEA. Rather, she has joined her federal claim with a state law claim of disability discrimination under the CRPDA. See Petition at 1. Unlike the IDEA, the CRPDA has no particularized administrative dispute resolution procedures. By contrast, it simply provides that:

The Rhode Island department of elementary and secondary education is empowered and directed to hear all complaints relating to violations of this chapter in the area of elementary and secondary education. Those complaints shall be heard in accordance with the process set forth in chapter 39 of title 16.

R.I. Gen. Laws § 42-87-5(c). And under chapter 39 of title 16:

Parties having any matter of dispute between them arising under any law relating to schools or education may appeal to the commissioner of elementary and secondary education who, after notice to the parties interested of the time and place of hearing, shall examine and decide the appeal without cost to the parties involved.

R.I. Gen. Laws § 16-39-1.

Yet, aside from the possible application of the IDEA dispute resolution procedures, parties seeking to invoke the Commissioner’s jurisdiction under chapter 39 also normally are subject to the doctrine of administrative exhaustion. As noted by the Rhode Island Supreme Court:

[r]equiring the exhaustion of administrative remedies (1) ‘aids judicial review by allowing the parties and the agency to develop the facts of the case, and (2) “it promotes judicial economy by avoiding needless repetition of administrative and judicial fact-finding, perhaps avoiding the necessity of any judicial involvement.’” Almeida v. Plasters’ and Cement Masons’ Local 40 Pension Fund, 722 A.2d 257, 259 (R.I. 1998), quoting Schwartz, Administrative Law§ 8.33 at 542 (1991), and citing Burns v. Sundlun, 617 A.2d 114, 117 (R.I. 1992). Although the Court’s discussion of the doctrine has to date been in the context of judicial review, the Commissioner has found its reasoning applicable to challenges to action or inaction by LEAs, and with certain exceptions, she has required that parties exhaust available remedies before superintendents and school committees before exercising jurisdiction.

Thus, there is a threshold question concerning the Commissioner’s jurisdiction the resolution of which hinges upon:

  1. Whether Doe is subject to the due process procedures mandated under the IDEA, which would deprive the Commissioner of jurisdiction; and if Doe is not so subject,
  2. Whether Doe’s state law disability discrimination claim before the Commissioner is premature under the doctrine of administrative exhaustion.

(a) The IDEA’s Due Process Procedures

In Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743 (2017) (Kagan, J.), a child with a severe form of cerebral palsy commenced suit in federal court under Title II of the Americans with Disabilities Act (the “ADA”) and § 504 of the Rehabilitation Act challenging a school’s refusal to allow the child to bring his service animal to school. See id. at 750-51. The District Court granted the school district’s motion to dismiss on the ground that the child had failed to exhaust the IDEA’s administrative procedures. See id. at 752.

In reversing the dismissal, the Court first emphasized that Congress had amended what was then the Handicapped Children’s Protection Act of 1986 and made clear in the IDEA that:

‘Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including § 504], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA's administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].’ Id. at 750 (quoting 20 U.S.C. §1415(l)). According to the Court:

The first half of § 1415(l) (up until ‘except that’) ‘reaffirm[s] the viability’ of federal statutes like the ADA or Rehabilitation Act ‘as separate vehicles,’ no less integral than the IDEA, ‘for ensuring the rights of handicapped children.’ H.R.Rep. No. 99–296, p. 4H.R.Rep. No. 99–296, p. 4 (1985); see id., at 6. According to that opening phrase, the IDEA does not prevent a plaintiff from asserting claims under such laws even if, as in Smith itself, those claims allege the denial of an appropriate public education (much as an IDEA claim would). But the second half of § 1415(l) (from ‘except that’ onward) imposes a limit on that ‘anything goes’ regime, in the form of an exhaustion provision. According to that closing phrase, a plaintiff bringing suit under the ADA, the Rehabilitation Act, or similar laws must in certain circumstances—that is, when ‘seeking relief that is also available under’ the IDEA’—first exhaust the IDEA's administrative procedures.

Id. (emphasis added).

In Fry, the Court went on to hold that in order to be subject to the IDEA’s due process procedures, a claim under “the ADA, the Rehabilitation Act, or similar laws... must seek relief for the denial of a FAPE, because that is the only ‘relief’ the IDEA makes ‘available.’” See id. at 752.[17] And in determining “when a plaintiff ‘seeks’ relief for the denial of a FAPE and when she does not,” id. at 755, the Court emphasized that one must “look to the ‘substance’ of, rather than the labels used in, the plaintiff's complaint... What matters is the crux—or, in legal-speak, the gravamen—of the plaintiff's complaint, setting aside any attempts at artful pleading.” Id.; see also Parent/Professional Advocacy League, 934 F.3d at 20 (To discern “whether a suit indeed ‘seeks’ relief” under the IDEA, Fry holds that a court should look to the substance, or the gravamen, of the plaintiff's complaint.”). Indeed, in Doucette, the First Circuit made clear that the fact that a plaintiff has alleged a violation of FAPE is not determinative, emphasizing that:

[t]he complaint’s express allegations of FAPE deprivation and inadequate educational services do not require us to find otherwise. [footnote omitted]. The Supreme Court counseled against a ‘magic words’ approach to the IDEA exhaustion inquiry. Id. at 755. What matters is not whether ‘a complaint includes (or, alternatively, omits) the precise words [ ] “FAPE” or “IEP,”’ but rather whether a claim in fact ‘seeks relief for the denial of an appropriate education.’ Id. The allegations of FAPE deprivation are, as the Doucettes argue in their brief, ‘germane to... their state law claims and their section 1983 claims.’

936 F.3d at 26. The Fry Court went on to suggest that:

One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.

Id. at 756.

Applying the Fry framework here leads to the conclusion that the administrative dispute resolution procedures mandated under the IDEA do not deprive the Commissioner of her express statutory jurisdiction over disability discrimination claims under the CPDRA. Indeed, the IEP is not the source of the face mask requirement and the parties agree that it does not even address the requirement.[18] Moreover, while both parties focused on the RIDOH Playbook, they ignored the fact that RIDOH promulgated regulations implementing the face mask mandate in schools, see § II, ¶ 7, supra at 4, and these regulations have the force and effect of law. See Southwell, supra, slip op. at 45-47; see also Great American Nursing Centers, Inc. v. Norberg, 567 A.2d 354, 357 (R.I. 1989), citing Batterton v. Francis, 432 U.S. 416, 425 (1977) (Legislative rules promulgated pursuant to the specific statutory authority have “the force and effect of law”).

CSP emphasizes the fact that the specific the E.O. compelling the CSP to adopt a universal face masking requirement applies only to schools, see E.O. 21-87,[19] and suggests that as a result, the first theoretical question suggested by the Court in Fry should be answered in the negative. Yet, CPS ignores the bigger picture, as well as the fact that face masks have been mandated in other settings, such as, for example:

  • On public transportation like planes, buses, trains, and boats;
  • When providing or using paid ground transportation services;
  • At transportation hubs like airports and train and bus stations;
  • In enclosed or semi-enclosed transit stops and waiting areas; and
  • If working in a healthcare setting where suspected or confirmed COVID-19 patients are treated.

See Rhode Island Masking FAQs (RIDOH, September 23, 2021).[20] In addition, as noted, the quarantine and isolation rules are, with variations, applicable outside the school setting. See § II, ¶ 32, supra, at 10 (quoting E.O. 21-105).

Thus here, the answer to the questions suggested by the Court in Fry confirm the Commissioner’s jurisdiction: First, Doe could have brought essentially the same claim if the alleged conduct, i.e., the requirement that a face mask be worn, “had occurred at a public facility that was not a school—say, a public theater or library.” See Fry, 137 S.Ct. at 456. And second, “an adult at the school—say, an employee or visitor—[could] have pressed essentially the same grievance.” Id.[21]

In summary, since: (i) the gravamen of Doe’s Petition is disability discrimination based upon the implementation of an E.O. during a pandemic, and not the appropriateness of any educational provision in an IEP; and (ii) neither the IDEA’s despite resolution procedures nor its “stay put” provision are designed to provide the immediate relief sought here to avoid alleged irreparable harm, the Commissioner is not precluded by the IDEA from exercising jurisdiction over Ms. Doe’s Petition.[22]

(b) Administrative Exhaustion and the State Law Claim

As noted, aside from the IDEA’s requirements, the doctrine of administrative exhaustion is, as a general matter, applicable to any claim made to the Commissioner under chapter 39 of title 16, which would include disability discrimination claims “in the area of elementary and secondary education.” See supra at 13-14 (quoting R.I. Gen. Laws § 42-87-5(c).

The First Circuit delineated the specific exceptions to the exhaustion doctrine in Pihl v. Massachusetts Department of Education, 9 F.3d 184, 190-91 (1st Cir. 1993). Although Pihl involved the IDEA, the Rhode Island Supreme Court has stated that it is “in full agreement” with the First Circuit’s “categorization of the several exceptions to the normal rule requiring exhaustion of administrative remedies,” Doe v. East Greenwich, 899 A.2d 1258, 1266 (R.I. 2006), which are limited to situations when:

  1. the administrative process would be ‘futile or inadequate;’
  2. the administrative process would ‘waste resources, and work severe or irreparable harm on the litigant;’
  3. the issues raised ‘involve purely legal questions;’ or
  4. the agency prevents ‘the litigant from pursuing [his or] her claim at the administrative level.’

Id., quoting Pihl, supra, 9 F.3d at 190–91.

Here, Ms. Doe made several attempts to appeal to School officials. Moreover, if the allegations of the Complaint are taken at face value, the significant delay attending further appeals would have the potential to irreparably harm Doe. See generally, Rosemary Queenan, Delay & Irreparable Harm: A Study of Exhaustion Through the Lens of the IDEA, 99 N.C. L. Rev. 985 (May, 2021).

Moreover, exercising jurisdiction here on an expedited basis is appropriate because, as was the case in Mr. and Mrs. Doe, on behalf of Student M. Doe v Cranston Public School District, RIDE No. 20-072 A (another recent case concerning an exemption from a school face mask mandate): (i) Doe’s continued in person school attendance and/or emotional health was allegedly at risk; and (ii) some prompt legal guidance on the issue would be useful since additional challenges to the implementation of such exemptions by LEAs can be expected, especially in the wake of the recent Superior Court decision affirming the legality of the mandate.

Finally, since there were no material facts in dispute, there is no reason not to render a final decision with respect to Ms. Doe’s state law discrimination claim.

2. The Merits

The CRPDA provides that:

No qualified individual with a disability, as defined in the Americans with Disabilities Act [(the “ADA”)], 42 U.S.C. § 12101 et seq., nor any individual or entity because of a known relationship or association with an individual with a disability shall be:

  1. Discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation or commercial facilities covered by the [ADA], 42 U.S.C. § 12101 et seq.; [or]
  2. Excluded from participation in or be denied the benefits of the services, programs, or activities of, or be subjected to discrimination by, a public entity covered by the [ADA], 42 U.S.C. § 12101 et seq. . . .

R.I. Gen. Laws § 42-87-3(5). Significantly, the Act makes clear that:

The application, exemptions, definitions, requirements, standards, and deadlines for compliance with subdivision (5) shall be in accordance with the requirements of the [ADA], 42 U.S.C., § 12101 et seq. and the federal regulations pertaining to the Act, 28 CFR 36, 28 CFR 35, and 29 CFR 1630.

Id. at (6).[23] Thus, cases construing the ADA are directly relevant when interpreting the CRPDA. In addition, the First Circuit has clarified that while there is some overlap between the protections afforded under the IDEA and the ADA, “the ADA... cast[s] a much wider net than the IDEA.” See Pollack v. Regional School Unit 75, 886 F.3d 75, 81 and n.2 (1st Cir. 2018).

To establish a prima facie case of discrimination under the ADA, a plaintiff must show the following:

  1. plaintiff is a qualified individual with a impairment;
  2. plaintiff was excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by [the] public entity; and
  3. such exclusion or discrimination was due to [plaintiff’s] impairment.

B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016) (citation and quotation marks omitted). Moreover, the ADA mandates that schools “offer reasonable accommodations for a student’s known disability unless the accommodation would impose an ‘undue hardship’ on the operation of its program.” See Dean v. University at Buffalo School of Medicine and Biomedical Sciences, 804 F.3d 178, 186 (2d Cir. 2015). And in Dean, the Circuit Court noted that:

in the education context, a plaintiff alleging a failure to accommodate a disability bears the burdens of both production and persuasion as to the existence of some accommodation that would allow the plaintiff to meet the essential requirements of the service, program, or activity at issue. Once the plaintiff has met the light burden of producing evidence as to the facial reasonableness or plausibility of the accommodation, the burden falls to the defendant educational-institution to persuade the fact-finder that the proposed accommodation is unreasonable. That burden may be met by establishing that the requested accommodation would (a) impose undue hardship on the operation of the defendant's service, program, or activity, or (b) require a fundamental or substantial modification to the nature of its academic program or standards.

804 F.3d at 190.[24]

Thus here, Ms. Doe bears the initial burden of establishing that her proposed accommodation – i.e., completely exempting Doe from an indoor face mask requirement that is mandated by state law and allowing Doe to interact and engage in collaborative work with other masked students while unmasked herself, and in the absence of any distancing requirements – was “facially reasonable” and “plausible,” and would not: (a) impose “undue hardship on the operation of [the School’s] program, or activity;” or (b) require a “fundamental or substantial modification to the nature of its academic program or standards.”

To meet this burden, Ms. Doe relied exclusively upon her own testimony and two letters from Doe’s physicians stating, without elaboration, that:

  1. “[Doe] is unable to put the mask on herself. She also has difficulties with oral secretion with a mask on. For those reasons she is unable to wear a mask at anytime.” See Petitioner’s Exhibit 3; and
  2. “[d]ue to her medical diagnosis, please exempt [Doe] from wearing a mask at school, any school activities and on the bus. She is not able to wear a mask at all.” See Petitioner’s Exhibit 2

At the same time, Ms. Doe refused to sign releases to enable School officials to question Doe’s physicians, either as to: (a) the potential risk posed to other students from a child who, according to Ms. Doe’s own testimony and a letter from Doe’s doctor, suffered from “a lack of saliva control.” See also Petition, ¶ 2 at 1; (b) the increased risk to Doe herself in the event she were to engage with other children without a mask and without any distance limitations; or (c) possible strategies to protect Doe and other children while addressing Ms. Doe’s concerns.

In Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002), the Circuit Court noted that “[r]easonableness ‘depends on the individual circumstances of each case, and requires a fact-specific, individualized analysis of the disabled individual’s circumstances...].’” Id. (citation omitted). However, although every case of this nature poses different issues, it is true as a general rule that a parent seeking a medical exemption from the face mask mandate must provide school officials with access to their children’s medical records and providers, if reasonably requested.

In any event, Ms. Doe not only refused such access, she also failed to produce a scintilla of competent evidence to enable a factfinder to conclude that it would be reasonable for CPS to go further than it had in accommodating Doe. Thus, she failed to meet the admittedly “light” burden of producing evidence as to the “facial reasonableness or plausibility” of her requested accommodation.[25]

Here, the CSP has gone as far as it reasonably could, at least in the complete absence of evidence as the potential additional risks to Doe or other students, by granting the requested medical exemption and affording Doe most of the privileges that she requested in her Petition.

And School officials acted entirely appropriately when addressing Ms. Doe’s request for a medical exemption. They remained open-minded and receptive to Ms. Doe’s concerns while at the same time reaching out to RIDOH, and attempting to reach out to Doe’s physicians, for guidance.

Ms. Doe’s bald suggestion that the CPS should go further and enable her daughter to act as if we no longer were in the midst of a pandemic is nether reasonable on its face nor plausible. As recently found by the Superior Court, “[e]ven with the recognition that the wearing of masks creates some irreparable harm to students, that harm is significantly outweighed by the harm caused by the unmasked spread of the disease, particularly among children.” See Southwell, supra, slip op. at 18-19.

V. ORDER

For all the above reasons, Doe’s Complaint and Petition for Interim Order Relief is hereby denied and dismissed, without prejudice to Doe’s right to initiate dispute resolution procedures under the IDEA and seek whatever relief may be appropriate.

Footnotes

[1] Due to a shortage of available stenographers, the parties also stipulated that the official record on appeal will consist, in part, of a transcript of the recording by a certified stenographer, which will be made available to the parties in the usual manner.

[2] Ms. Doe also testified that Doe and other members of the family had contracted Covid-19, and recovered.

[3] Although the IEP itself was not introduced into evidence, the parties agreed that it did not address the face mask issue.

[4] A renewed state of emergency was declared by the Governor on August 19, 2021 as a result of the Delta variant of the virus, and unless superseded, will remain in effect through December 11, 2021. See E.O. 21-86, as extended by E.O.s 21-97, 21-103 and 21-109.

[5] On September 17, 2021, Governor McKee signed E.O. 21-97 extending E.O. 21-87, which required face masks in schools, through October 16, 2021.

[6] The School Nurse recalls that Ms. Doe initially agreed to sign the necessary releases, whereas Ms. Doe does not recall doing so. In any event, Ms. Doe eventually declined to sign, as will become evident.

[7] The follow-up letter from Ms. Doe to Dr. Powers was not produced.

[8] Ms. Doe also referenced a separate September 20 letter from Dr. Younes, see Respondent’s Exhibit 1, which presumably was an earlier draft of what was introduced into evidence as Petitioner’s Exhibit 2.

[9] See Order under Section 361 of the Public Health Service Act (42 U.S.C. 264) and 42 Code of Federal Regulations 70.2, 71.31(b), 71.32(b) Requirement for Persons to Wear Masks while on Conveyances and at Transportation Hubs, available at https://www.cdc.gov/quarantine/pdf/Mask-Order-CDC_GMTF_01-29-21-p.pdf.

[10] See CDC COVID-19 Update (as of August 27, 2021) available at https://www.cdc.gov/coronavirus/2019ncov/travelers/face-masks-public-transportation.html.

[11] In fact, the CDC Order specifically exempted: A person with a disability who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disabilities Act (42 U.S.C. 12101 et seq.). Id. at 4-5, available at https://www.cdc.gov/quarantine/pdf/Mask-Order-CDC_GMTF_01-29-21-p.pdf.

[12] Paragraph 4 refers to hospitalized persons and those living in a congregate care setting.

[13] “Fully vaccinated” means a person received the final dose of an approved COVID-19 vaccination series or the only dose of an approved one-dose COVID-19 vaccine at least 14 days prior to the last date of close contact.

[14] And on November 12, 2021, the Governor extended E.O. 21-87 requiring face masks in schools through December 11, 2021. See E.O. 21-110, available at https://governor.ri.gov/executive-orders/executive-order-21-110.

[15] Although Ms. Doe sought an interim protective order under R.I. Gen. Laws § 16-39-3.2, the speed with which her Petition was heard and decided moots any need to determine whether she met the necessary statutory criteria for such an order.

[16] On November 8, 2021, CPS moved to join RIDOH as a “necessary and indispensable” party, arguing, in essence, that RIDOH’s joinder was mandatory because Doe was requesting that the Commissioner “deep six the RIDOH Playbook.” See CPS’s Motion to Join the Rhode Island Department of Health at 4. Doe objected, arguing that the RIDOH Playbook was “irrelevant.” See Petitioner’s Response to Motion to Join the Rhode Island Department of Health as a Party at 2. However, whether or not the RIDOH Playbook is relevant with respect to the merits of Doe’s claim is not determinative with respect to the joinder issue. Although not strictly applicable, Superior Court Rule of Civil Procedure 19 is a useful guide, and maintains that: A person who is subject to service of process shall be joined as a party in the action if: (1) In the person’s absence complete relief cannot be accorded among those already parties; or (2) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may: (A) As a practical matter impair or impede the person’s ability to protect that interest; or (B) Leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person’s claimed interest. Id. Here, CPS has failed to establish any of the above elements, and therefore its motion was denied.

[17] See also Parent/Professional Advocacy League v. City of Springfield, 934 F.3d 13, 20 (1st Cir. 2019) (applying Fry) ”); Doucette, 936 F.3d at 23 (“Under Fry, if a school ‘refus[ed] to make an accommodation’ for a disabled child, ‘injuring [the child] in ways unrelated to a FAPE,’ a plaintiff ‘seeking redress for those other harms... is not subject to § 1415(l)’s exhaustion rule.’”); Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 132-33 (3d Cir. 2017) (endorsing a claim-by-claim approach to the Fry analysis).

[18] The IDEA’s “stay-put” provision, see 20 U.S.C. § 1415(j), can provide interim jurisdiction to the Commissioner in certain cases in order to preserve the “current educational placement.” Yet, it is logically inapplicable here, where Ms. Doe is seeking relief on an expedited basis to prevent what she claims is ongoing emotional harm to her child, a fact which, if anything, further illustrates that the gravamen of the Petition is not related to educational details in an IEP.

[19] As extended by E.O.’s 21-97, 21-103 (see Respondent’s Exhibit 6), and most recently, E.O. 21-110. See note 13, supra at 11.

[20] Available at https://health.ri.gov/publications/frequentlyaskedquestions/Rhode_Island_Masking_FAQ.pdf.

[21] The one post-Fry case cited by CPS – Phillips v. Town of Hebron, 201 Conn. App. 819 (Ct. App. 2020) – is readily distinguishable on the facts. In Phillips, the plaintiff had sought administrative relief under the IEP and the gravamen of the complaint concerned a failure to comply with specific provisions in an existing IEP. See id. at 83436.

[22] And as the First Circuit explained in Parent/Professional Advocacy, supra, 934 F.3d at 20: Even if a court determines that a complaint seeks relief that is available under the IDEA, exhaustion is not required where it ‘would be futile or inadequate.’ Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Id. Thus, even if the law construing the IDEA was applicable, exhaustion would not be required here for reasons that will become apparent.

[23] Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. at § 12132. And a “public entity” includes a state or local government body or any instrumentality thereof, see id. at § 12131(1), which includes public schools.

[24] Citing Powell v. Nat’l. Bd. Med. Exam., 364 F.3d 79, 88 (2d Cir. 2004) (allowing a student in medical school to continue in program without passing Step 1 “would have changed the nature and substance of [the] program”); Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1049–51 (9th Cir.1999) (rearranging medical clerkship rotations, reducing clinical hours, and otherwise decelerating schedule would lower medical school's standards); McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d 974, 979 (10th Cir.1998) (permitting student with marginal grades to advance in M.D. program as an exception to policy requiring repetition of coursework was a substantial rather than reasonable accommodation); Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 432, 436–37 (6th Cir.1998) (allowing student to attend abbreviated remedial summer program instead of retaking failed examination would diminish podiatric training standards); Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794–95 (1st Cir.1992) (providing biochemistry test in an alternative format would lessen academic standards and devalue university’s credentials as an institution).

[25] Although CPS made much of the fact that the mere presence of an unmasked child in the classroom would increase the length of quarantine in the event of a positive case under the revised quarantine rules, see § II, ¶ 32, supra at 10, it was unclear whether CPS had considered the fact that kindergarten students were in the process of being organized into ‘pods” consisting of two (2) to three (3) children. See id., ¶ 32, supra at 10.

ANTHONY F. COTTONE, ESQ.,

as Hearing Officer for the Commissioner

ANGÉLICA INFANTE-GREEN,

Commissioner

Dated: November 16, 2021