Fusion Learning, Inc. v. Andover School Committee

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

FUSION LEARNING, INC., )

)

Plaintiff, )

) Civil Action

v. ) No. 21-cv-11059-PBS

)

ANDOVER SCHOOL COMMITTEE, et. al, )

)

Defendants. )

)

______________________________ )

MEMORANDUM AND ORDER ON MOTION TO DISMISS

June 29, 2022

Saris, D.J.

INTRODUCTION

Plaintiff Fusion Learning, Inc. (“Fusion Academy”) brought

this claim under 42 U.S.C. § 1983 against the Andover School

Committee, the Town of Andover, and three school officials in their

personal capacities: Superintendent of Schools Claudia Bach,

Assistant Superintendent Sandra Trach, and former Superintendent

Sheldon Berman (Count I). Fusion Academy alleges that Defendants

violated its rights to academic freedom, procedural due process,

and substantive due process by twice denying its application to

operate a private school in Andover. It further seeks a declaration

pursuant to 28 U.S.C. § 2201 that its applications satisfied the

requirements of M.G.L. c. 76, § 1 (Count II). Defendants moved to

dismiss.

After hearing, the Court ALLOWS IN PART and DENIES IN PART

the Motion to Dismiss (Dkt. 15).

FACTUAL BACKGROUND

The following facts are alleged in the Complaint.

I. The Parties

Plaintiff Fusion Academy owns and operates schools that it

describes as “an alternative private option for parents of children

in grades 6-12 who often struggle in traditional school settings,”

utilizing one-on-one instruction “individually paced for each

student,” combined with teacher-supervised “digital instruction

sessions.” Dkt. 1 ¶¶ 10, 106. It operates private schools for

grades 6-12 in 17 States and the District of Columbia, including

three in Massachusetts: in Newton, Burlington, and Hingham.

The Andover School Committee (“School Committee”) is the

entity that makes educational policies, including for the approval

of applications to operate private schools in the town. See id.

¶ 7; M.G.L. c. 76, § 1.

II. Fusion Academy’s First Application

On May 29, 2018, Fusion Academy submitted its first

application to operate a private school in Andover. The School

Committee designated Defendants Trach and Berman to review the

application and make a recommendation on approval. They indicated

to Fusion Academy that securing a certificate of occupancy was a

pre-condition to completion of the review process. In September

2018, Fusion Academy secured a school site pursuant to a written

lease for ten years and six months, with a cumulative obligation

of two and a half million dollars, and proceeded to build out the

campus at a cost of almost one and a half million dollars.

On April 10, 2019, Trach submitted a written recommendation

against approval; Berman concurred. The recommendation expressed

concern that Fusion Academy’s teaching model, which included one-

on-one instruction and asynchronized learning, relied on fewer

teacher-led hours of instruction than the model utilized by Andover

public schools, and so might not adequately prepare students for

higher education. In Trach and Berman’s view, the two models were

“in no way comparable.” Dkt. 1 ¶ 62. The recommendation also

emphasized that Fusion Academy lacked an on-site nurse and failed

to set out how it would support the “social, emotional, and

behavioral needs (e.g., psychological services, counseling, social

work, nursing, etc.)” of the students it was targeting. Id. ¶¶ 65–

69. Finally, the recommendation criticized the absence of any

licensing requirement for teachers at Fusion Academy and urged

disapproval because of “Fusion’s failure to provide data regarding

teacher turnover rates, subject matter expertise, or its policy

regarding teacher preparation time.” Id. ¶ 78.

After a hearing on April 11, 2019, the School Committee denied

the application. Members of the Committee told Fusion Academy that

if it addressed the recommendation’s criticisms, there would be no

reason to disapprove a second application.

III. Fusion Academy’s Second Application

On May 14, 2020, Fusion Academy submitted a reworked

application addressing the criticisms. Defendants Trach, Berman,

and Bach were designated to review the application and make a

recommendation. Fusion Academy was provided with no substantive

feedback, despite repeated inquiries as to the timeline and

numerous offers to provide any missing information or

documentation and to discuss any areas of concern.

On March 16, 2021, ten months after Fusion Academy submitted

its second application, the School Committee listed Fusion

Academy’s application as a discussion item for its March 18, 2021,

meeting. Fusion Academy was not given the opportunity to respond

to the comments of defendant Trach and the Andover Superintendent

at the meeting.

On March 23 or 24, 2021, Defendant Trach sent a fifteen-page

memorandum to Defendant Bach recommending against approval. Bach

endorsed this recommendation. The memorandum concluded that Fusion

Academy’s twenty-three hours of one-on-one instruction and twenty-

three hours of teacher-supervised, in-person digital instruction

per class per semester were not equivalent to fifty hours of

teacher instruction in a class setting. It further stated that the

model does not comply with the state’s student learning time

regulation because the “self-study digital learning module does

not meet the student learning requirement for in-person

instruction” pursuant to the March 9, 2021, directive of the

Department of Elementary and Secondary Education (“DESE”)

Commissioner. Id. ¶ 105. The recommendation was also critical of

the application for embodying the plan for nursing coverage in a

draft contract rather than a fully executed one, for a lack of

evidence concerning whether Fusion Academy’s instructional units

meet state requirements for public schools, for varying the length

of its courses in response to a student’s pacing needs, and for

utilizing outside providers to work with students with special

needs.

On March 23, 2021, at about 3:00 pm, the Committee posted an

agenda for its March 25 meeting with Fusion Academy’s application

listed as a vote item for hearing. Mid-day on March 24, the public

agenda was changed to include the fifteen-page recommendation,

dated March 23. Fusion Academy submitted a written response thirty

hours later, an hour before the March 25 meeting. At the March 25

meeting, as at the March 18 meeting, Fusion Academy representatives

were not permitted to speak or answer Committee questions when the

application came up in the agenda; they were only permitted to

address the recommendation during the general public comment

session, prior to the start of the actual hearing on the

application. Fusion Academy asked that its response letter be read

during the hearing, but the Committee refused.

The Committee denied the application four votes to one, based

primarily on the recommendation. Committee members stated that a

major consideration in denying the application was Fusion

Academy’s purported non-compliance with the DESE student learning

time regulation. One Committee member voted in favor of approval,

arguing the application review process had major flaws and that

the Committee could not determine the equivalency between a

traditional brick-and-mortar school and this one-to-one teaching

model.

IV. Regulatory Overview

Under Massachusetts law, approval of private schools as an

alternative to compulsory public-school attendance is vested in

town school committees: “[S]chool committees shall approve a

private school when satisfied that the instruction in all studies

required by law equals in thoroughness and efficiency, and in the

progress made therein, that in the public schools in the same

town.” M.G.L. c. 76, § 1. On October 2, 2007, the Commissioner of

DESE issued an “Advisory on Approval of Massachusetts Private

Schools Pursuant to Mass. Gen. Laws s. 76, § 1.” See Dkt. 15-2.

The Advisory emphasized that “[s]chool committee approval is

neither an evaluation of program quality nor an endorsement of any

particular school.” Id. at 2. It advised, “In order to assist

private schools in its district, the school committee should have

a written statement of policy and procedures by which it considers

and acts upon private school applications for approval.” Id. The

Advisory contains a “suggested rather than mandatory” set of

guidelines for what a policy should address, including the criteria

for measuring thoroughness and efficiency, but noted that “because

G.L. c. 76, § 1, does not specify the manner in which a school

committee conducts its review process, school committees are

afforded wide discretion in developing their own policies.” Id.

“The only requirement is that a school committee apply its policies

and procedures consistently to all private schools located within

its jurisdiction.” Id. The Andover School Committee’s published

policy respecting its approval process for private schools merely

parrots the statutory standard of “thoroughness, efficiency, and

progress” without delineating criteria for meeting the standard or

specifying the process or timeline for approval.

In a FAQ attached to the DESE Advisory, the Commissioner

clarifies that certain state regulations do not apply to private

schools. “The Student Learning Time regulations, as such, do not

apply to private schools,” so “while the school committee may

consider the total student learning time and length of the school

year at a private school in determining whether the school’s

program meets the statutory standard of ‘thoroughness and

efficiency,’ these factors are not required for approval.” Id. at

3. The standard generally “should not be interpreted as extending

particular public school mandates regarding instruction and

curriculum to private schools.” Id. at 4.

The regulation governing public schools requires a minimum of

990 hours per school year of structured learning time. 603 CMR

27.04(2). “Structured learning time” is defined to mean all “time

during which students are engaged in regularly scheduled

instruction, learning activities, or learning assessments within

the curriculum,” including, in addition to classroom time where

both teachers and students are present, “directed study,

independent study, technology-assisted learning, presentations by

persons other than teachers, school-to-work programs, and

statewide student performance assessments.” 603 CMR 27.02. A March

9 Directive indicated that hybrid and remote learning, which had

been allowed at times during the Covid-19 pandemic, would no longer

count toward structured learning time. See Jeffrey C. Riley,

Massachusetts Department of Elementary and Secondary Education,

“Guidance on In-Person Learning Requirements,”

https://www.masc.org/images/news/DESE_On-the-Desktop_Guidance-

on-In-Person-Learning-Requirements.pdf.

LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). Two basic principles guide the court’s analysis.

“First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

conclusions.” Id. “Second, only a complaint that states a plausible

claim for relief survives a motion to dismiss.” Id. at 679. A claim

is facially plausible if its factual content “allows the court to

draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678.

DISCUSSION

I. Academic Freedom

Fusion Academy asserts that the denials of its applications

deprived it of its right to academic freedom. It also argues that

the denials of the application were arbitrary and capricious, and

that “Defendants have unlawfully destroyed/deprived/interfered

with Fusion Academy’s liberty, business and property.” Dkt. 1

¶ 128.1

1 The Town of Andover argues it cannot be held liable under § 1983 on a respondeat

superior theory under Monell v. Department of Social Services of New York City,

436 U.S. 658, 691-95 (1978). The Court need not tarry because Plaintiff argues

that the School Committee violated its rights. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 480–82 (1986) (holding a municipality can be sued

under § 1983 for the acts of a body or official “where the decisionmaker

possesses final authority to establish municipal policy with respect to the

action ordered”).

A. Standing

As a threshold matter, defendants argue that Fusion Academy

lacks standing to assert any rights parents may have in directing

the upbringing and education of their children. Fusion Academy

responds by pointing to Pierce v. Society of Sisters, 268 U.S. 510

(1925). In Pierce, the Supreme Court reaffirmed the “liberty of

parents and guardians to direct the upbringing and education of

their children under their control.” Id. at 534-35. While private

schools cannot claim for themselves this liberty, they “have

business and property for which they can claim protection.” Id. at

535. The Supreme Court held that private schools can seek

“protection against arbitrary, unreasonable and unlawful

interference with their patrons and the consequent destruction of

their business and property.” Id. at 536.

The Supreme Court has consistently held that the owners of

private schools were “entitled to assert the rights of potential

pupils and their parents.” Griswold v. Connecticut, 381 U.S. 479,

481 (1965); see also Runyon v. McCrary, 427 U.S. 160, 175 n.13

(1976) (“It is clear that the schools have standing to assert these

arguments on behalf of their patrons.”). Accordingly, Fusion

Academy has standing to assert the rights of potential pupils and

parents.

B. Interference with Academic Freedom

Defendants also argue that Fusion Academy has not stated a

claim of unlawful interference with academic freedom under the

First Amendment. “Academic freedom, though not a specifically

enumerated constitutional right, long has been viewed as a special

concern of the First Amendment.” Regents of the Univ. of Cal. v.

Bakke, 438 U.S. 265, 312 (1978); see also Keyishian v. Bd. of

Regents of Univ. of State of N.Y., 385 U.S. 589, 603 (1967) (“That

freedom is therefore a special concern of the First Amendment,

which does not tolerate laws that cast a pall of orthodoxy over

the classroom.”). In Sweezy v. State of N.H. by Wyman, 354 U.S.

234 (1957), Justice Frankfurter delineated “four essential

freedoms of a university—to determine for itself on academic

grounds who may teach, what may be taught, how it shall be taught,

and who may be admitted to study.” Id. at 263 (Frankfurter, J.,

concurring).

The First Circuit has held that “private schools have a First

Amendment right to academic freedom.” Asociación de Educación

Privada de P.R., Inc. v. García-Padilla, 490 F.3d 1, 11 (1st Cir.

2007). But it has also acknowledged that the state has the right

and power “to promulgate reasonable regulations affecting private

primary and secondary schools to ensure that minimum educational

standards are met.” Id. This is because primary and secondary

schools “are vitally important in the preparation of individuals

for preparation as citizens and as vehicles for inculcating

fundamental values necessary to the maintenance of a democratic

political system.” Id. (quoting Bd. of Educ., Island Trees Union

Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982)). Given

this vital interest of the state, “the right to academic freedom

in secondary education is necessarily more circumscribed than that

of a university.” Id. at 11 n.6. For example, states can insist

that private institutions provide minimum hours of instruction,

employ teachers of specified training, and cover prescribed areas

of instruction. See id. at 11 (citing Bd. of Educ. Of Cent. Dist.

No. 1 v. Allen, 392 U.S. 236, 246 (1968)).

“Because academic freedom rights must ultimately flow from

the First Amendment, claims of their violations are subject to all

the usual tests that apply to assertions of First Amendment

Rights.” Id. at 15 (quoting Omosegbon v. Wells, 355 F.3d 668, 676–

77 (7th Cir. 2003)). Generally, “regulations intended to serve

purposes unrelated to content of the regulated speech, despite

their incidental effects on speech, expression, or message are

subject to intermediate scrutiny,” with the court determining

whether the restrictions are narrowly tailored to serve a

significant government interest and whether they leave open ample

alternative channels for communication. Id. at 15–16. “Where the

challenged regulation is indirect and content-neutral, the

question of whether the incidental burdens on speech or academic

freedom trigger a First Amendment claim is a fact-sensitive one.”

Asociación de Educación Privada v. Echevarría-Vargas, 385 F.3d 81,

87 (1st Cir. 2004). The First Circuit cautioned, “[I]t is wiser to

defer the determination of what standard of review to apply until

the case, and the nature of the First Amendment burdens, if any,

have been clarified through more factual development.” Id. at 87

n.5.

Defendants argue that denying the application due to concerns

about the educational model’s hours of instruction (23 hours of

“in-person” and 23 hours “asynchronized” per course per semester),

the lack of AP courses, the absence of standardized grading, and

the failure to require a Massachusetts license for teachers did

not interfere with any of Fusion Academy’s core academic freedoms

and did not intrude into its “intellectual life.” Dkt. 16 at 11–

12.

Here, the challenged decision is content-neutral, but the

Court has an inadequate factual record to weigh the substance of

the government’s interests relative to any First Amendment burden

imposed on who may teach and how. Significantly, the Court does

not have Andover’s recommendations or a transcript of its

proceedings to evaluate the nature of the burdens and

justifications. Accordingly, the motion to dismiss as to the

academic freedom claim is denied.

II. Procedural Due Process

Fusion Academy argues it was deprived of its liberty and

property interests in violation of its procedural due process

rights when the application was denied without sufficient notice

or opportunity to comment.

“The requirements of procedural due process apply only to the

deprivation of interests encompassed by the Fourteenth Amendment’s

protection of liberty and property.” Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 569 (1972). Here, Fusion Academy

has a liberty interest in its academic freedom and arguably a

property interest in the amount expended on the lease of the school

site.

The First Circuit has outlined the contours of procedural due

process:

The essentials of procedural due process comprise notice

of the charges and a reasonable chance to meet them. The

basic purport of the constitutional requirement is that,

before a significant deprivation of liberty or property

takes place at the state’s hands, the affected

individual must be forewarned and afforded an

opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’ As the rubric itself implies,

‘procedural due process’ is simply ‘a guarantee of fair

procedure.’

Amsden v. Moran, 904 F.2d 748, 753 (1st Cir. 1990) (citations

omitted). Defendants argue that Fusion had just that: notice and

an opportunity to be heard, both orally and in writing. Fusion

Academy responds that it was only given about forty-eight hours-

notice of the hearings and twenty-four hours-notice to respond in

writing to the lengthy recommendation against its approval,

despite the ten-month review of its application. It further

responds that it was not allowed to participate in the discussion

of its application to refute inaccuracies in the recommendations,

but rather was only allowed by the Committee to speak during the

public comment section at the beginning of the meeting. Fusion

Academy has alleged sufficient facts to state a claim that the

notice and opportunity to be heard was not meaningful or adequate

to address the recommendation against its application.

However, inadequate process in the moment does not always

amount to a due process violation. See generally Hudson v. Palmer,

468 U.S. 517, 530–34 (1984) (“[A]n unauthorized intentional [or

negligent] deprivation of property by a state employee does not

constitute a violation of the procedural requirements of the Due

Process Clause of the Fourteenth Amendment if a meaningful

postdeprivation remedy for the loss is available.”). “[W]hen a

state official is not acting pursuant to established state

procedure, the state is not in a position to provide anything other

than such postdeprivation remedies.” Lowe v. Scott, 959 F.2d 323,

340 (1st Cir. 1992); see also Hadfield v. McDonough, 407 F.3d 11,

20 (1st Cir. 2005) (holding postdeprivation remedies are

sufficient “when the challenged state action is a flaw in the

official’s conduct rather than a flaw in the state law itself”).

The First Circuit has held that “where a state has provided

reasonable remedies to rectify a legal error by a local

administrative body,” such as “avenues of appeal to the state

courts,” due process has been provided and “section 1983 is not a

means for litigating the correctness of the state or local

administrative decision in a federal forum.” Creative Env’ts, Inc.

v. Estabrook, 680 F.2d 822, 832 n.9 (1st Cir. 1982); see also

Chongris v. Bd. of Appeals of Town of Andover, 811 F.2d 36, 40

(1st Cir. 1987) (“Where state procedures—though arguably

imperfect—provide a suitable form of predeprivation hearing

coupled with the availability of meaningful judicial review, the

fourteenth amendment guarantee of procedural due process is not

embarrassed.”) (citing id. at 829–30).

Here, although the predeprivation hearing before the School

Committee was deficient, Defendants correctly argue that Fusion

Academy has been provided a reasonable remedy: certiorari review

in state court. See M.G.L. c. 249, § 4 (“A civil action in the

nature of certiorari to correct errors in proceedings which are

not according to the course of the common law . . . may be brought

in the supreme judicial or superior court.”); see also State Bd.

of Ret. v. Bulger, 843 N.E.2d 603, 606 (Mass. 2006) (“General Laws

c. 249, § 4 provides for limited judicial review in the nature of

certiorari to correct errors of law in administrative proceedings

where judicial review is otherwise unavailable.”). Accordingly,

the procedural due process claim is denied based on postdeprivation

remedies.

III. Substantive Due Process

Defendants argue that their conduct did not violate the

substantive due process rights of Fusion Academy. Fusion Academy

responds, without elaboration, that Society of Sisters is

“sufficient to show that the defendants’ argument under this

heading does not hold water.” Dkt. 21 at 15.

“[O]nly the most egregious official conduct can be said to be

‘arbitrary in the constitutional sense.’” Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998) (quoting Collins v. Harker Heights,

503 U.S. 115, 129 (1992)). The applicable standard is that the

abuse of power must “shock[] the conscience” and violate the

“decencies of civilized conduct.” Id. (quoting Rochin v.

California, 342 U.S. 165, 172–73 (1952)). “[I]n order to shock the

conscience, conduct must at the very least be extreme and

outrageous, or, put another way, truly outrageous, uncivilized,

and intolerable.” Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir.

2006) (cleaned up). “‘Mere violations of state law, even violations

resulting from bad faith,’ do not invariably amount to conscience-

shocking behavior.” Id. (quoting DePoutot v. Raffaelly, 424 F.3d

112, 119 (1st Cir. 2005)). “[T]his unforgiving standard guards

against ‘insinuat[ing] the oversight and discretion of federal

judges into areas traditionally reserved for state and local

tribunals.’” Collins v. Nuzzo, 244 F.3d 246, 251 (1st Cir. 2001)

(quoting Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964

F.2d 32, 45 (1st Cir. 1992)). The door has only been left “slightly

ajar” for a truly “horrendous situation[].” Nestor Colon Medina,

964 F.2d at 45.

Fusion Academy contends that the motivation for Defendants’

opposition to its school was to avoid expending additional funds

on students with special needs. For example, Chairperson Shannon

Scully allegedly stated that “it was ‘a giant red flag’ for her

that Fusion Academy was targeting special education families.”

Dkt. 1 ¶ 121. Even if the School Committee was motivated by such

funding concerns, defendants’ alleged behavior fails to shock the

conscience, and Fusion Academy fails to state a claim for violation

of substantive due process.

IV. Qualified Immunity

Defendants argue that the three individual defendants, sued

in their personal capacities, are entitled to qualified immunity

because “a reasonable defendant would [not] have understood that

[its] conduct violated the plaintiff[’s] rights.” Dkt. 16 at 18

(quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)).

Defendants explain that there is no First Circuit authority that

would have put the individuals on notice that their conduct in

recommending the School Committee deny Fusion Academy’s

application violated any clearly established rights of Fusion

Academy. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)

(“[G]overnment officials performing discretionary functions

generally are shielded from liability for civil damages insofar as

their conduct did not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.”).

Fusion Academy responds that the three individual defendants

made their recommendations based on the state laws applicable to

public schools even though DESE guidance explicitly precludes

extension of these mandates to private schools. But an FAQ attached

to an advisory from a state department is not “clearly established

law” for the purposes of the qualified immunity analysis. There is

no clear caselaw in the First Circuit or Supreme Court that

erroneously denying an application for failure to meet the state

mandates, without more, would violate the clearly established

First Amendment rights of the applicant. The individual defendants

are entitled to qualified immunity and the claims against them are

dismissed.

V. Comity

Plaintiff asks the Court, pursuant to 28 U.S.C. § 2201, to

declare that both applications satisfied the requirements of

M.G.L. c. 76, § 1. A court, “[i]n a case of actual controversy

within its jurisdiction, . . . upon the filing of an appropriate

pleading, may declare the rights and other legal relations of any

interested party seeking such declaration, whether or not further

relief is or could be sought.” 28 U.S.C. § 2201. This Declaratory

Judgment Act is “an enabling Act, which confers a discretion on

the courts rather than an absolute right upon the litigant.” Pub.

Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 241 (1952); see

also Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995) (“Since

its inception, the Declaratory Judgment Act has been understood to

confer on federal courts unique and substantial discretion in

deciding whether to declare the rights of litigants.”). “[T]he

propriety of declaratory relief in a particular case will depend

upon a circumspect sense of its fitness informed by the teachings

and experience concerning the functions and extent of federal

judicial power.” Wycoff, 515 U.S. at 243.

The question of whether Fusion Academy’s proposed school

equals Andover public schools “in thoroughness and efficiency, and

in the progress made therein,” is quintessentially a state-law

issue better handled by the School Committee and the state courts.

In the interest of comity, the claim for a declaratory judgment is

dismissed to the extent it raises a state-law claim.

ORDER

After hearing, for the reasons stated above, the Motion to

Dismiss (Dkt. 15) is ALLOWED IN PART and DENIED IN PART.

SO ORDERED.

/s/ PATTI B. SARIS

Hon. Patti B. Saris

United States District Judge