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24-P-1165 Appeals Court
JANE DOE1 & another2 vs. MARK THORELL & another.3
No. 24-P-1165.
Plymouth. October 10, 2025. – February 26, 2026.
Present: Massing, Sacks, & Allen, JJ.
"Anti-SLAPP" Statute. Constitutional Law, Right to petition government. School and School District. School and School Committee. Individuals with Disabilities Education Act. Parent and Child, Education. Libel and Slander. Unlawful Interference. Emotional Distress. Practice, Civil, Motion to dismiss.
Civil action commenced in the Superior Court Department on February 8, 2024.
A special motion to dismiss was heard by William F. Sullivan, J.
Howard M. Cooper for the plaintiffs. Patrick T. Uiterwyk for the defendants.
1 Individually and as next friend of John Doe, Jr.
2 John Doe, individually and as next friend of John Doe, Jr. These names are pseudonyms.
3 Abby Thorell. 2
SACKS, J. The plaintiffs appeal from a judgment dismissing
their complaint under G. L. c. 231, § 59H, the "anti-SLAPP"
statute (§ 59H). The defendants, Mark and Abby Thorell, parents
of a fourth-grade public school student, wrote a letter asking
the school to address allegedly disruptive classroom behavior by
a specific, but unnamed, student in their son's class. The
Thorells sent the letter by e-mail to various local school
officials, with copies to the parents of four other students in
the same classroom who assertedly shared the Thorells' concerns.
Jane and John Doe, learning of the letter and believing that it
referred to their son, John Doe, Jr. (Doe Jr.), filed a
complaint in the Superior Court against the Thorells, alleging
defamation, interference with Doe Jr.'s right as a child with a
disability to a free and appropriate public education, and
infliction of emotional distress.
The Thorells filed a special motion to dismiss the
complaint under § 59H. Applying the framework of Bristol
Asphalt Co. v. Rochester Bituminous Prods., Inc., 493 Mass. 539
(2024) (Bristol Asphalt), a judge allowed the motion. He
concluded that (1) the Thorells had shown the claims were based
entirely on their protected petitioning activity and (2) the
Does had failed to show the petitioning was "devoid of any
reasonable factual support or any arguable basis in law." G. L. 3
c. 231, § 59H, first par. We now affirm the judgment of
dismissal.
Background. 1. The letter. The Thorells sent their
letter on November 6, 2023, to the school principal and
assistant principal, the school committee, and the
superintendent, with copies to the teacher and certain other
parents. The second paragraph of the letter began:
"On Friday, November 3rd, our son came home retelling events from the day which included having to evacuate his classroom due to the unsafe and disruptive behavior of a specific classmate. He further indicated the situation was so unsafe that he and his classmates had to take a math test for approximately [thirty] minutes and then complete [thirty] additional minutes of [online instruction] on their [C]hromebooks, all while sitting in the hallway. This, unfortunately, is not an isolated incident. In the first two months of this school year, through the behavior of this specific classmate, our son has been exposed to obscene and profane language, bullying towards others, endangerment of property and other people, and most startling, racist remarks regarding his friend. Notably, these behaviors are exhibited across all school settings (e.g., classroom, hallway, gym, library, music, and the lunchroom).
"In a word, this is unacceptable. We have internalized and saved our concerns regarding this specific classmate's behavior until this point."
The letter continued by requesting that the school
administration and school committee take some action to address
the situation. First, quoting the school system's code of
discipline, the Thorells asked, "What 'prompt action' can we
expect 'in cases where unacceptable behavior interferes' [with
learning]?" Second, they asked for "appropriate support" for 4
the teacher. Third, the Thorells stated that they supported
"access to the Least Restrictive Environment[;] however, when
[our] son and his classmates are REMOVED from their [fourth-
grade] classroom, perhaps you need to re-evaluate your proper
ability to support this specific student in a general education
classroom."
The letter closed by asking for "actions . . . so our
children are safe and continue to learn appropriately. This is
beyond the scope of a teacher['s] 'classroom management'
abilities." Significantly for this case, a postscript to the
letter explained that copies were being sent to other concerned
parents, at the request of those parents, so that they could
express their support for the Thorells.
2. The Does' complaint. We recount the pertinent
allegations of the complaint. Doe Jr. had attended the school
since 2022. He sometimes became dysregulated while at school.
The school district evaluated him and determined that he had a
learning disability and would benefit from an individualized
education plan (IEP). When he started fourth grade in the fall
of 2023, the complaint alleged, he "was regularly bullied
throughout the school day, including by [the Thorells'] son and
his friends." Nevertheless, aside from the emotional distress
resulting from the bullying, the complaint asserted that Doe Jr.
was "beginning to settle into his school routine." 5
Then, on Friday, November 3, 2023, "there was an incident
at school that resulted in [Doe Jr.] becoming dysregulated."
That afternoon, the school principal sent an e-mail message to
the Does, telling them that he had been in the classroom and had
observed Doe Jr. to be "distressed" before "ultimately
regulating." The following Monday morning, the teacher sent an
e-mail message to the parents of all students in the class,
other than the Does. The message reported that the preceding
Friday, "[d]ue to disruptive student behavior within our
classroom, our class had to move its learning to a secondary
space." The teacher acknowledged to parents "the frustration
many of you feel," assured them that he and other school staff
were doing all they could "to minimize pauses in the learning,"
and invited parents who had further questions to contact him or
the principal or assistant principal. Later that morning, the
Thorells sent their letter.
The complaint alleged that the letter made "false
allegations against [Doe Jr.]" and that it "urged the [d]istrict
to remove him from his classroom." The Does alleged that the
resulting emotional distress had left them "no choice" but to
withdraw Doe Jr. from the school. On this basis, the Does
asserted claims of defamation; interference by threats,
intimidation, and coercion with Doe Jr.'s right to a free and
appropriate public education under the Individuals with 6
Disabilities Education Act (IDEA) and other statutes; and
intentional and negligent infliction of emotional distress.
complaint under § 59H. They did not dispute that the unnamed
student their letter referred to was Doe Jr. The parties filed
additional evidentiary materials relevant to the motion. After
a hearing, the judge allowed the motion.
Discussion. 1. The Bristol Asphalt framework. In Bristol
Asphalt, 493 Mass. at 555-556, the Supreme Judicial Court
returned to a simplified, two-stage framework for evaluating
special motions to dismiss under § 59H. At the first stage, the
motion's proponent (here the Thorells) must "make a threshold
showing through the pleadings and affidavits that the claims
against it are 'based on' the [proponent's] petitioning
activities alone and have no substantial basis other than or in
addition to the petitioning activities." Id. at 555, quoting
Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168
(1998).
If a special motion proponent meets this threshold burden,
the analysis proceeds to the second stage, at which § 59H
requires allowance of the motion unless the special motion
opponent (here the Does) shows "that the special motion
proponent's exercise of its right of petition 'was devoid of any
reasonable factual support or any arguable basis in law' and 7
. . . 'caused actual injury to the [special motion opponent].'"
Bristol Asphalt, 493 Mass. at 557, quoting G. L. c. 231, § 59H.
Our review of the judge's rulings at both stages is de novo.
Bristol Asphalt, supra at 560.
2. First stage: whether Does' claims were based solely on
Thorells' petitioning. The Does argue that the Thorells did not
meet their threshold burden to show that the Does' claims were
based solely on the Thorells' petitioning activities. The Does
primarily base this argument not on the content or addressees of
the letter itself, but on its postscript's statement that,
before sending it, the Thorells had communicated about their
concerns with some other parents. The Does argue that those
communications, made to private parties alone, did not
constitute petitioning activity. We are not persuaded.
Section 59H defines "a party's exercise of its right of
petition" to include five categories of activity:
"[1] any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; [2] any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; [3] any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; [4] any statement reasonably likely to enlist public participation in an effort to effect such consideration; or [5] any other statement falling within constitutional protection of the right to petition government" (emphases added). 8
G. L. c. 231, § 59H, sixth par. The Thorells argue that their
pre-letter statements to other parents fell into the fourth
category, "enlistment" petitioning, because the statements were
reasonably likely to enlist public4 participation in an effort to
obtain school officials' consideration of the challenges posed
by Doe Jr.'s classroom behavior.
Because the wording of the Thorells' postscript is
important, we reproduce it in full. It stated:
"The individuals copied on this email are parents/guardians of other students in our son's class. The daily occurrences of unsafe, bullying, and racist behavior has brought many families together out of concern for their children. After expressing our concerns to them and indicating that we were writing a letter, they asked to be included on the email to express their support (i.e., they can/will offer their own sentiments in the context of [this] email)."
A fair construction of the postscript is that (1) the Thorells
and other families had previously discussed their shared
concerns about Doe Jr.'s behavior in the classroom; (2) when the
4 Importantly, but somewhat counterintuitively, § 59H's reference to any statement reasonably likely to enlist public participation includes statements made to enlist private, i.e., nongovernmental, parties in an effort to effect governmental consideration of an issue. See, e.g., Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 592-593 (2014) (union group's financial and organizational support of ten- taxpayer suit against town was enlistment petitioning); Baker v. Parsons, 434 Mass. 543, 551 n.13 (2001), abrogated by Bristol Asphalt, 493 Mass. at 558 n.18, 560 (biologist's statements to cause ten citizens to petition State environmental agency would constitute enlistment petitioning). 9
Thorells' concerns were heightened by the November 3 incident,
they decided to write a letter about it and to inform other
families that they were doing so; (3) the other families asked
to be sent copies of the letter once completed, so that they
could express support for the Thorells' message; and (4) the
Thorells followed up by furnishing the requested copies.5
Indeed, within a few hours after the Thorells' letter, the
parents of a classmate sent an e-mail message to the school
officials -- submitted to the judge with the Thorells' § 59H
motion -- stating, "[We] would like to reiterate the sentiment
in [the] letter of concern [about] . . . the constant disruption
in the classroom[,] . . . [one] that we deeply feel needs to be
resolved. . . . We are looking forward to hearing what the next
steps are to make changes to this situation."
We agree with the Thorells that the pre-letter
communications to other parents, as described in the postscript,
constituted enlistment petitioning as described in § 59H.
5 Nothing in the Does' complaint contradicts this construction of the postscript. Indeed, the body of the complaint did not mention either the postscript or any pre- letter communications by the Thorells to other parents. The letter was merely attached to the complaint. We doubt that the attachment alone gave the Thorells fair notice that the Does based their claims on a phrase in the postscript noting the Thorells' communications to other parents. We will nevertheless assume in the Does' favor that the complaint sufficiently alleges that the Thorells previously communicated to other parents the same concerns they raised in their letter to school officials. 10
Moreover, although such communications need not succeed in
enlisting others' support in order to constitute enlistment
petitioning, here they did succeed. Therefore, the Does'
claims, to the extent based on those communications, were
"'based on' the [Thorells'] petitioning activities alone and
have no substantial basis other than or in addition to the
petitioning activities." Bristol Asphalt, 493 Mass. at 555,
quoting Duracraft Corp., 427 Mass. at 167-168.
The Does advance four arguments to the contrary. None of
them is availing.
First, the Does stress that the other parents had no
obligation to report the Thorells' concerns to the government.
No doubt, "petitioning activity can include a communication made
to a private entity if the private entity, by law, must notify a
governmental body of the communication" (emphasis added).
Sabatini v. Knouse, 105 Mass. App. Ct. 174, 180 n.10 (2025),
citing Berk v. Kronlund, 102 Mass. App. Ct. 710, 715 (2023).6
But neither Sabatini nor Berk suggested that communications to
private parties constitute petitioning only if those parties are
consequently required to make reports to government. To the
contrary, § 59H's definition of petitioning includes statements
6 Further appellate review in Sabatini has been granted on an issue unrelated to § 59H. See 496 Mass. 1103 (2025). 11
merely "reasonably likely" to enlist others' participation in an
effort to effect governmental consideration of an issue.
Second, the Does argue that the Thorells' statements to
other parents could not be petitioning because they were
unrelated to any "ongoing governmental proceeding." But
enlistment petitioning does not depend on an ongoing proceeding.
In referring to "any statement reasonably likely to enlist
public participation in an effort to effect," i.e., bring about,
governmental consideration of an issue, § 59H plainly includes
circumstances in which no consideration of the issue has yet
occurred and no proceeding concerning it is ongoing.
"Statements made outside any formal governmental proceedings
have often been considered petitioning activity." North Am.
Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 862
(2009) (citing cases).
Third, the Does argue that the Thorells failed to show that
their statements to other parents met two petitioning criteria
recognized in Blanchard v. Steward Carney Hosp., Inc., 477 Mass.
141, 149, 152 (2017), overruled on other grounds by Bristol
Asphalt, 493 Mass. at 555-556. The two criteria were that the
statements must be "reasonably geared to reaching" the
government, Blanchard, supra at 152, and must be "objective[ly]
. . . inten[ded] to influence a governmental proceeding," id. at
149. Importantly, in discussing those criteria, the Blanchard 12
court was not construing all five of § 59H's definitions of
petitioning, but only the second definition, referring to
statements made "in connection with an issue under consideration
or review by a legislative, executive, or judicial body, or any
other governmental proceeding" (emphasis added). Id. at 147,
quoting G. L. c. 231, § 59H. See Blanchard, supra at 148 n.13
(no claim that statements fell under any other definition). See
also Lucey v. Kinnon, 106 Mass. App. Ct. 358, 365-366 (2025).
The two Blanchard criteria may be relevant when construing
other definitions. See Sabatini, 105 Mass. App. Ct. at 179-181
(discussing definition covering "any statement reasonably likely
to encourage consideration or review of an issue" by
government). For enlistment petitioning under § 59H, it may be
that the "effort to effect [governmental] consideration" in
which a challenged statement seeks to "enlist public
participation" must be an effort that is both reasonably geared
to reaching and intended to influence government. But here the
Thorells' letter itself met those two criteria; it thus was such
an "effort." And the statements mentioned in the postscript
were reasonably likely to enlist other parents' participation in
that effort.
Fourth and finally, shifting their focus to the content of
the Thorells' letter, the Does argue that the letter was not
"legitimate petitioning activity" (emphasis added). Bristol 13
Asphalt, 493 Mass. at 556. They contend that the letter did not
seek any "legitimate relief" but instead was "targeted at
eviscerating the [F]ederal statutory rights of a child with
disabilities by fomenting community pressure via defamatory
lies," in "an attempt to run [Doe Jr.] out of school and deprive
him of his right to be educated in the least restrictive
environment." To the extent the Does' argument is that the
Thorells' motive deprived their letter of its status as
petitioning, the argument is foreclosed by Bristol Asphalt's
statement that "neither a special motion proponent's identity,
nor the motive behind its decision to engage in petitioning
activity (or to file a special motion to dismiss), is relevant
to the threshold inquiry" (emphasis added). Bristol Asphalt,
supra at 563. See Benoit v. Frederickson, 454 Mass. 148, 153
(2009) (error to rule that legitimacy of petitioning depends on
motive); Hidalgo v. Watch City Constr. Corp., 105 Mass. App. Ct.
148, 151-152 (2024) (alleged subjective motive for lawsuit
irrelevant to whether it constitutes petitioning or lacks
reasonable basis in fact or law).7 To the extent the Does'
argument is that the letter sought relief that education laws
7 Further appellate review in Hidalgo has been granted on an attorney's fee issue not relevant here. See 496 Mass. 1104 (2025). 14
forbade and, therefore, had no arguable basis in law, we address
the argument infra.
In sum, in the first stage of the analysis, the Thorells
have shown that the Does' claims against them are "based on the
[Thorells'] petitioning activities alone and have no substantial
basis other than or in addition to the petitioning activities"
(quotation and citation omitted). Bristol Asphalt, 493 Mass. at
555.
3. Second stage: whether petitioning was devoid of
factual or legal support. At the second stage of the § 59H
analysis, we ask whether the Does have carried their burden of
showing that the Thorells' petitioning is "'devoid' of any
reasonable factual support or any arguable basis in law."
Bristol Asphalt, 493 Mass. at 557.8 The Bristol Asphalt court
stressed that "proving petitioning is 'devoid' of any reasonable
factual support or any arguable basis in law is a difficult
task" for the special motion opponent. Id. Thus, "proving that
petitioning activity was illegitimate presents [a] 'high bar'"
for the Does (citation omitted). Id. at 558. They cannot
prevail merely by submitting affidavits controverting the
Because we ultimately conclude that the Does have not 8
carried this burden, we need not address their additional second-stage burden of showing "actual injury." Bristol Asphalt, 493 Mass. at 557. 15
statements made in the Thorells' petitioning and in the
affidavits supporting the Thorells' special motion to dismiss.
See id. at 557-558. "[M]aterial, disputed credibility issues
may not be resolved in the [Does'] favor" in ruling on the
presence of reasonable factual support. Id. at 558. Rather,
the Does essentially must show that the Thorells' petitioning
was "frivolous[]" (citation omitted). Id. at 559-560. We
address in turn the issues of factual and legal support.
a. Devoid of any reasonable factual support. Citing a
phrase in Bristol Asphalt, the Does argue that, once they
"submitted evidence and argument challenging the reasonableness
of the factual and legal basis of the petitioning, [the
Thorells] cannot merely rely on speculation, conclusory
assertions, or averments outside of [their] personal knowledge
for the court to identify reasonable support" (emphasis added).
Bristol Asphalt, 493 Mass. at 558. The Does assert that the
Thorells, in support of their special motion, failed to offer
statements by anyone with personal knowledge of events in the
classroom. Instead, say the Does, the Thorells impermissibly
relied only on the hearsay statements of their son, and the
statements of other parents likewise based only on their own
children's reports. We are not convinced.
i. Personal knowledge and children's statements. Contrary
to the Does' argument, Bristol Asphalt's personal knowledge 16
requirement does not mean that reports from third parties, such
as the Thorells' son here, can never supply factual support for
petitioning. As an initial matter, we do not agree with the
Does' effort throughout their brief to characterize the personal
knowledge requirement as an exclusion of "hearsay." The Supreme
Judicial Court did not use that term in Bristol Asphalt, 493
Mass. at 558, and we doubt that the court intended to exclude
admissible hearsay -- such as business records, excited
utterances, and many other types of evidence routinely treated
as reliable -- when evaluating the factual support for
petitioning activity. Cf. Hidalgo, 105 Mass. App. Ct. at 153
(petitioning devoid of factual support where not based on
business owner's personal knowledge or consultation of business
records). Excluding all hearsay would risk making § 59H
protection unavailable to persons who complain to their elected
representatives about government actions in, for example,
Washington, D.C., or Boston, unless those persons had been
personally present in those locations to observe the actions
that led to the complaints.
As for personal knowledge, although the Thorells' son's
statements gave them no personal knowledge of events at school,
they plainly did have knowledge of their son's concerns about 17
those events.9 This in turn gave the Thorells a factual basis
for expressing their own concerns to school officials. Numerous
factors show that the Thorells acted reasonably in doing so.
Those factors include, but are not necessarily limited to, their
son's age (old enough for fourth grade), his ability to
personally see and hear what he later reported to his parents,
the subject and content of his reports, and his observed
demeanor.10 Cf. Benoit, 454 Mass. at 153-154 (parents'
involvement in their minor daughter's reporting of alleged rape
to police plainly came within scope of petitioning and was not
shown to lack any reasonable factual support). The question for
us is not whether the son's reports were true, but whether the
Does have shown that those reports provided no reasonable basis
in fact for the Thorells to write their letter of concern. The
Does have not met that burden.
The Does particularly argue that there was no reasonable
factual support for the letter's reference to "daily occurrences
of unsafe, bullying, and racist behavior." Although this
9 Cf. Mass. G. Evid. § 801(c) note (2025) (statement not hearsay if offered only to show notice to or other effect on hearer).
10The Thorells' affidavits recounted their observations that reported events in the classroom had caused their son to "suffer with anxiety" and have "negative feelings . . . about going to school." 18
statement may well have been rhetorical excess, it did not
render the letter devoid of support. Under § 59H, the question
is not whether each and every assertion made in the course of
petitioning activity has reasonable factual support, but whether
the special motion proponent's "exercise of its right to
petition [itself] was devoid of any reasonable factual support."
G. L. c. 231, § 59H, first par. The court in Bristol Asphalt
"clarif[ied] that the mere existence of an isolated 'untrue' or
'misleading' statement would not, in and of itself, mean that
the petitioning activity was devoid of any reasonable factual
support or arguable basis in law" (citation omitted). Bristol
Asphalt, 493 Mass. at 558 n.18.
The reports of other students to their respective parents,
as shown by affidavits the Thorells filed in support of their
special motion, were consistent in numerous respects with the
facts set forth in the Thorells' letter. As already stated, the
judge had before him a copy of an e-mail message to school
officials from parents of another child in the classroom,
reiterating the Thorells' concerns. Also before the judge were
the similar written statements of the parents of four other
children, asserting, for example, that "[t]he racial slurs,
explicit language, sexual remarks, violent behavior with damage
of property as well as just an unpleasant and chaotic
environment . . . went on for far too long." One of those 19
parents went on to discuss allegations of racist behavior toward
her child by an unnamed student, whom the Does have not disputed
was Doe Jr.
Not unexpectedly, the Does submitted affidavits that
vigorously disputed the Thorells' and other parents' statements
about events at school. But submitting materials controverting
the factual support for the Thorells' petitioning was not enough
to carry the Does' burden of showing that the petitioning was
devoid of any reasonable factual support. See Bristol Asphalt,
493 Mass. at 557-558.
ii. Statements of school officials. Furthermore, the
Thorells did not rely solely on the reports of their son and
other children; they also relied on the written statements of
three school officials with personal knowledge of events in the
classroom and the school's response. The first such statement
was the teacher's e-mail message to classroom parents about the
November 3 "disruptive student behavior" incident. That message
recognized parents' "frustration" and assured them that he and
others were already working to address "pauses in the learning,"
the plural suggesting that the recent incident was not the only
pause that might concern parents. The teacher's message also 20
invited parents to contact him or the principal or assistant
principal with questions.11
The second such statement was the principal's e-mail
message to the Does on the day of the incident, noting that he
had been with Doe Jr. in the classroom earlier and recognizing
that Doe Jr. had become dysregulated. The third such statement
was the superintendent's response via e-mail to the Thorells'
letter, acknowledging that their concerns were not unfounded.
While not claiming personal knowledge of specific events in the
classroom, the superintendent was in a position to know, as her
message stated, that there was an "ongoing situation" related to
the goal of "provid[ing] a safe learning environment," that she
and other school system officials had been "working . . . to
find a resolution," and that she was directing the principal to
communicate further information the following week.
These statements, based on the personal knowledge of the
teacher, principal, and superintendent, did not support every
assertion of fact in the Thorells' letter. But they did support
that there had been a significant incident involving disruptive
student behavior in the classroom, related to an ongoing
11This invitation alone should make us pause before concluding that the Thorells' letter, sent to the teacher and those two other officials, shortly thereafter and on the same subject, was devoid of any factual basis. 21
situation that required the attention of multiple school
officials, and in which parents would be expected to be
interested. For this additional reason, the Does did not carry
their burden of showing that the Thorells' petitioning activity
was devoid of any reasonable factual support.
b. Devoid of any arguable basis in law. The Does may
alternatively carry their second-stage burden by showing that
the Thorells' petitioning was devoid of any arguable basis in
law. See Bristol Asphalt, 493 Mass. at 557. Here,
characterizing the Thorells' letter as asking that Doe Jr. be
removed from the classroom or at least "disciplined," the Does
argue that there was no legal basis either to remove Doe Jr. or
to direct a request to discipline him to officials who had no
disciplinary authority. Although we accept for purposes of this
argument the Does' claim that the Thorells' letter asked for
such measures, the letter also asked for additional relief. The
Does have not shown that any of these requests was devoid of any
arguable legal basis.
i. Request for removal from classroom. The Does argue
that the request to remove Doe Jr. from the classroom had no
legal basis because Doe Jr.'s IEP team had determined, only a
week before the November 3 incident, that Doe Jr. should "remain
in a mainstream classroom with additional support." The Does
view the removal request as legally baseless because the body 22
empowered to decide on Doe Jr.'s placement had already done so.
Cf. Bristol Asphalt, 493 Mass. at 565-566 (challenge to site
plan approval lacked arguable legal basis where board's approval
already squarely addressed issues underlying challenge and no
evidence showed board's approval conditions would be
insufficient).
Here, to begin with, the Does made no showing that the
Thorells knew or should have known that Doe Jr. had an IEP, let
alone that the IEP team had recently met or what it had
decided.12 When determining whether petitioning has been shown
to be devoid of any arguable basis in law, it is relevant to
consider what the petitioners already knew or reasonably should
have known about what action the government had taken on the
issue raised in the petition. And it would not be enough for
the special motion opponent (here the Does) to show that the
special movant's petitioning activity was based on an error of
law. Rather, the special motion opponent must show that no
reasonable person could conclude there was any basis in law for
Such records and data are generally confidential under 12
Federal and State educational privacy laws. E.g., 20 U.S.C. § 1232g(b)(1); 603 Code Mass. Regs. § 23.07(4) (2002). See Champa v. Weston Pub. Sch., 473 Mass. 86, 90-95 (2015). The Does point to the letter's use of the phrase "[l]east [r]estrictive [e]nvironment" as showing the Thorells' awareness that Doe Jr. had a disability. Even if the Thorells knew that fact (which their affidavits denied), it would not mean they knew of the IEP team's recent decision that Doe Jr. should remain in the classroom. 23
the petitioning activity. See Wenger v. Aceto, 451 Mass. 1, 7
(2008).
Moreover, even if we assume the Thorells knew of the IEP
team's recent placement decision, that would not deprive the
Thorells' request to change that decision of any arguable basis
in law. The IEP team made its decision the week before the
November 3 incident; the Thorells' request to remove Doe Jr. was
made after and because of that incident. It was directed to,
among others, two members of the IEP team (the teacher and the
principal). The Does point to no law barring the IEP team from
revisiting its decision based on a subsequent incident arguably
calling the wisdom of that decision into question. A request
for reconsideration based on changed circumstances is an
accepted part of our legal system. See, e.g., Audubon Hill S.
Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc.,
82 Mass. App. Ct. 461, 470 (2012). Cf. Moe v. Sex Offender
Registry Bd., 444 Mass. 1009, 1009 (2005) ("In the absence of
statutory limitations, administrative agencies generally retain
inherent authority to reconsider their decisions").
The Does nevertheless maintain that the Thorells' letter
had no legal basis because the IEP team's decision was "the only
possible decision" that met IDEA requirements. Yet the case
they rely on uses no such definitive terms. See Oberti by
Oberti v. Board of Educ. of the Borough of Clementon Sch. Dist., 24
995 F.2d 1204 (3d Cir. 1993). There, in reviewing whether a
school system had satisfied the IDEA's mandate of educating
children with disabilities in mainstream classrooms to the
maximum extent appropriate, the court agreed that one
permissible consideration was "the possible negative effect the
child's inclusion may have on the education of the other
children in the regular classroom," i.e., "excessive
disruption." Id. at 1217. A request to consider removing a
child from a mainstream classroom because of that child's recent
and significant disruptive behavior would thus not be devoid of
any legal basis in the IDEA, even if consideration of other
factors led to a conclusion that removal was inconsistent with
the IDEA. See Wenger, 451 Mass. at 7 (error of law alone does
not render petitioning devoid of any legal basis).
ii. Request for discipline. The Does argue that the
letter's request for discipline of Doe Jr. lacked any legal
basis insofar as it was directed to officials, such as the
superintendent and school committee members, who had no
disciplinary authority.13 In support of this argument, the Does
submitted to the judge a copy of the school system's code of
13Although the Does frame their argument as going to whether the Thorells' letter was "legitimate" petitioning activity, we consider it on the question whether the petitioning was devoid of any arguable legal basis. 25
discipline, under which, they say, only the principal or a
designee (typically an assistant principal) may impose
disciplinary consequences.
But even on the issue of discipline, the Does overlook that
school principals are appointed by the superintendent and carry
out their duties "subject to the [superintendent's] supervision
and direction." G. L. c. 71, § 59B. The superintendent in turn
is selected and may be terminated by the school committee. See
G. L. c. 71, § 37. Thus the superintendent and, less directly,
the school committee have the authority to ensure that
principals enforce appropriate discipline.14
iii. Other relief requested. Discipline aside, the
Thorells' letter could fairly be read as seeking other relief as
well -- relief within the authority of the superintendent or the
school committee to grant, or at least to facilitate. The
letter employed language broad enough to include requests for
additional personnel, training, or other resources to assist the
teacher and Doe Jr. in dealing with the issues the Thorells
14The disciplinary code here begins with a message from the superintendent offering "to meet with anyone regarding its interpretation or implementation." The code also gives the superintendent authority to impose or review disciplinary measures in various circumstances. See G. L. c. 71, § 37H (superintendent shall publish district's policies on student conduct and discipline). 26
identified.15 We need not delve into the details of our
education laws to be confident that a school committee and
superintendent have some authority to determine, or at least
affect, the resources to be made available for particular
purposes within a school system. See generally G. L. c. 71,
§ 37 (powers of school committee); G. L. c. 71, § 59 (powers of
superintendent).
Finally, the Thorells' letter asked in general terms for
"actions . . . so our children are safe and continue to learn
appropriately." The Does have not shown that there was no
lawful step the school committee or superintendent could even
arguably take to bring about such actions. Accordingly, we
conclude that the Does failed to carry their burden of showing
that the Thorells' letter, insofar as addressed to those
officials, was devoid of any arguable basis in law.16
15Indeed, one of the Does' affidavits stated that, even before the November 3 incident, the IEP team was considering measures such as having a consultant observe Doe Jr. in his classroom and having Doe Jr.'s therapist train the teacher and paraprofessional on a de-escalation technique.
16In any event, we would be reluctant to conclude that directing otherwise proper petitioning to the "wrong" government official, or including along with proper requests for redress a request that lacked legal basis, would deprive the petitioning of its protection under § 59H. 27
Conclusion. The special motion to dismiss was properly
allowed.17
Judgment affirmed.
17Pursuant to § 59H and Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the Thorells may, within fourteen days of the issuance of this decision, submit an application for appellate attorney's fees and costs, with supporting materials. The Does shall have fourteen days thereafter to respond. The Thorells state that their request for attorney's fees and costs for counsel's trial court work on the special motion to dismiss was deferred by agreement pending this appeal. Upon issuance of the rescript, the Thorells may further pursue that request in the trial court.