KENNEBUNK — The parents of a girl who attends Middle School of the Kennebunks in Regional School Unit 21 have sued the school district, Superintendent Dr. Terri Cooper and the Assistant Superintendent Anita Bernhardt in federal court over the district’s refusal to allow their daughter remote classroom access.

The Kennebunk Post has been in touch with the plaintiffs, who are anonymous in court filings and have requested that they be kept anonymous to protect their daughter’s identity.

Two people named in the lawsuit, including defendant Bernhardt, have recently announced they are leaving RSU 21. Bernhardt has said her retirement is unrelated to the case.

The complaint, brought by a “Mr. and Ms. Doe,“ was filed on Dec. 28 in the District Court of Maine. The Does have retained attorneys Richard O’Meara, Francis Bigelow, and Ellen Masalsky of the firm Murray, Plumb & Murray.

The defendants are being represented by Christopher Taintor of the firm Norman, Hanson & DeTroy.

When asked for comment, Taintor wrote to the Post, saying he could not discuss the merits of the case.

“I think that is especially true given the fact the case involves a child with a disability. Accordingly, I must respectfully decline comment, and I have advised the RSU administration to do the same,” he added.

The Does’ daughter, called “Jane Doe” in court filings, has attended RSU 21 schools since fall 2021. She began exhibiting severe anxiety when she started middle school in August 2023, according to the complaint. In September, her therapist wrote a note attesting to the fact that she has separation anxiety disorder, social anxiety disorder and panic disorder, which Jane’s parents shared with the district.

“Heading into September, Jane’s anxiety was preventing her from attending school for the entire day,” according to the plaintiff’s first filing, which details that Jane had trouble entering her classroom.

Jane was paired with a “504 team,” a group that included MSK Principal Marty Bouchard, Jane’s social studies teacher, and a guidance counselor. A 504 plan is a set of accommodations for a student with a disability to help them succeed, which in Jane’s case included a modified school day and allowing her access to school guidance counselors and social workers.

Early in conversations with the 504 team, the Does began advocating for remote classroom access for their daughter, arguing that this is what she needed in order to reacclimate into the classroom and that such instruction was available during the pandemic.

The Does were told by the school that that sort of accommodation wasn’t possible, according to the complaint, and changes to this district-wide policy would have to be taken up with the superintendent.

According to the complaint, the Does were also made aware in late September, through a social media post, that another child in the district was accessing the classroom virtually through the use of a telepresence robot — a device that live streams the classroom and allows them to remotely interact with the teacher and other students. 

The Does’ complaint details multiple unsuccessful attempts to engage with Cooper about remote access, which prompted Ms. Doe to attend a school board meeting where she brought up the issue. She was told to take it up with the 504 team.

At an October meeting with Jane’s 504 team, that the assistant superintendent also attended, the Does brought up remote classroom access via telepresence robot. Bernhardt indicated using the telepresence robot would not be allowed in Jane’s case, according to the complaint.

The Does contacted the company that provided the other RSU 21 student with the telepresence robot, the nonprofit Grahamtastic Connection, and learned that they had a robot that could be made available for Jane at MSK.

“Sometimes in these cases there are fights about the cost of accommodation, but in this case, there is no cost,” said Richard O’Meara, the Does’ lawyer. Grahamtastic has committed to providing the robot for Jane at no cost to RSU 21, according to O’Meara. “Nothing comes out of the school coffers,” he said.

The plaintiffs argue that RSU 21 violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act — which prevents discrimination on the basis of disability by entities that receive federal funding. RSU 21 denies both of these allegations.

Taintor has argued on behalf of RSU 21 that the Does’ request would “fundamentally alter” education offered in the district, impose an undue burden on the district, and invade the privacy rights of other RSU 21 pupils.

The Does have also alleged that RSU 21, Cooper and Bernhardt have violated their First Amendment rights by retaliating against them for advocating for their daughter, and for their outspokenness in regards to a separate issue: RSU 21’s change to elementary band instruction time. Cooper and Bernhardt have entered a motion to dismiss this count against them, and RSU 21 denies this allegation as well. 

In early September, Ms. Doe penned a letter to the editor that ran in the Kennebunk Post, arguing that she disagreed with RSU 21’s changes to band instruction for elementary school students, saying it was tantamount to band instruction being reduced. She also sent emails to the school board about the band issue.

School Board Chair Erin Nadeau, who is mentioned in the complaint but is not a party to the case, published a letter in response, writing that RSU 21 did not cut band time. “Moving a supplemental opportunity to engage in music (outside of allied arts classes which occur weekly) is not cutting band. It is shifting it to a time when it will not disrupt the administration of core curriculum,” she wrote.

According to the plaintiffs, the back-and-forth regarding band instruction is part of the reason the school has refused to allow Jane access classroom remotely.

Bernhardt and Cooper say there was no retaliation

Only the third claim — the alleged First Amendment violation — has been brought against Cooper and Bernhardt, who have argued that it should be dismissed because “it does not plausibly allege that either of them acted with retaliatory animus.”

In a motion to dismiss filed on Jan. 26, the defendants say that the plaintiffs do not have enough evidence that their actions were retaliatory in nature. “The complaint contains few allegations describing any interactions between Plaintiffs and the Individual Defendants, and the allegations that do relate to the Individual Defendants do not even hint at frustration, animus, or retaliatory motive,” wrote the defendants’ counsel.

At best, the complaint provides evidence that Bernhardt and Cooper were insufficiently responsive to the Does’ concerns, according to the motion to dismiss.

Both parties have so far appeared before Judge John Woodcock Jr. one time, on Jan. 19, for a hearing via teleconference.

According to O’Meara, the two parties are waiting to hear whether the court wants to hold a hearing in order to rule on a motion for preliminary injunction. If injunctive relief is granted to the plaintiff, it would allow Jane to start using the telepresence robot in school.

The defendants have objected to the motion for preliminary injunction, saying that the denial of the Does’ request is not discrimination, and school leadership merely disagrees with the plaintiffs on how best to approach Jane’s case.

They argue that Jane has been making progress and that she’s been paired with a board-certified behavioral analyst to make recommendations, which could include virtual access — which they say is a sign of their commitment to complying with Rehabilitation Act and ADA obligations.

Rachel Bratter, the director of special services for RSU 21, has written in support of the defendants’ position opposing injunctive relief.

Bratter’s filing argues that Jane’s section 504 team worked to provide a range of accommodations in an effort to build up her tolerance to attending a full day of school at MSK. The school district made a number of accommodations available, but could not grant remote classroom access because of existing school policy.

But in addition to her objection on school policy grounds, Bratter disagrees that the telepresence robot is the right solution for Jane.

“In my professional experience, providing students with anxiety the option to use remote alternatives instead of in-person ones has been demonstrated to have potential drawbacks. It has been observed that this approach may inadvertently foster a tendency for students to avoid attending school in person,” she wrote. 

A social worker employed by RSU 21, Gregory Hesse-Strombreg, and Bouchard have also filed motions in opposition to granting injunctive relief.

Multiple people named in the lawsuit are departing RSU 21

The lawsuit was filed weeks before two people named in the case announced their intention to leave RSU 21.

Bernhardt wrote to the school district on Jan. 30, letting them know that she was retiring at the end of the year. She told the Kennebunk Post on Feb. 15 that the case and her decision to retire are unconnected.

Bernhardt has been with the district since July 2021, and immediately prior to that she worked for the York School Department, also as an assistant superintendent. Bernhardt previously worked for many years at the Maine Department of Education.

Tara Skiff, former school psychologist and 504 district coordinator, who was in communication with the Does about 504 accommodations, according to the complaint, also recently left the school district on Feb. 9.

Skiff could not be reached by deadline for comment.

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