G. v. The Fay School

United States Court of Appeals
For the First Circuit

No. 18-1602

G., a 12-year-old minor suing by a fictitious name for privacy
reasons; MOTHER and FATHER, suing under fictitious names to
protect the identity and privacy of G., their minor child,

Plaintiffs, Appellants,

v.

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

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.

John J.E. Markham, II, with whom Markham & Read was on brief,
for appellants.
Sarah Goldsmith Schwartz, with whom Anthony L. DeProspo, Jr.
and Schwartz Hannum PC were on brief, for appellees.

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

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

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

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

suffers from Electromagnetic Hypersensitivity ("EHS"), a

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

brought suit against Fay after the school refused to remove

wireless internet from its classrooms to accommodate G's

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

alleges unlawful retaliation for demands for an accommodation for

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

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

and misrepresentation.

We affirm the district court's rejection of these

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

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

remedy for a Title V retaliation claim premised upon an exercise

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

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

misrepresentation claims.

1
G sues under a fictitious name to protect his privacy as a
minor. G and his parents are, hereinafter, collectively referred

- 2 -
 I.

We recite the facts in the light most favorable to the

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

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

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

A. The Parties

The Fay School is an independent day and boarding school

in Southborough, Massachusetts. It enrolls children from pre-

kindergarten through the ninth grade, touting its ninth-grade year

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

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

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

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

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

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

parents must sign an enrollment contract stating that they will

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

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

students must also acknowledge that the handbook "does not

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

signed this enrollment contract.

to as "the G family" or "the family." The Fay School, Inc.
(hereinafter, "the Fay School" or "the school") and Fay's Head of
School, Robert Gustavson, are, hereinafter, collectively referred
to as "Fay."

- 3 -
 As the handbook advises, technology is "an integral part

of the academic and residential programs" at the school.

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

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

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

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

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

frequently accessed by students and teachers at the school. Most

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

as part of classroom instruction. Tablet computers are provided

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

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

students bring their own laptops or tablets to school

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

access the Fay School's Wi-Fi.

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

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

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

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

2
Apple TV is a digital media player that can receive digital
data, such as music or video, from a specific source (like an
iTunes library on a computer) and stream it to a television or
other video display. See John-Michael Bond, Why Apple TV can't
compete in 2018, The Daily Dot (March 23, 2018),
https://www.dailydot.com/debug/what-is-apple-tv-cost/.

- 4 -
wave radiation emitted from various types of electronic devices,

including Wi-Fi transmissions to and from computers."

B. Factual History

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

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

the school upgraded its wireless internet system to operate at a

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

("Mother")3 began expressing concerns about the harmfulness of Wi-

Fi generally, stating in an email to the school that "there is a

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

expressed these concerns to various individuals at the school,

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

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

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

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

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

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

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

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

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

in these communications.

3
G's parents sue under the fictitious names "Mother" and
"Father" to protect the identity and privacy of their minor son.

- 5 -
 Following Mother's communications, the Head of School,

Robert Gustavson, and other Fay School staff members exchanged a

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

comments in those emails were dismissive or derisive:

 "It's inappropriate and presumptuous for a
parent to contact trustees and demand that a
topic be discussed at a Board meeting . . . .
[S]he should not be rewarded for going around
me [Gustavson]."
 "We are . . . in agreement that we should . . .
try to cut this off at the pass."
 "Seems to me that meeting with them [the
family] would open a can of worms."
 "Blahahahahahahahaha!" [in response to an
email with the subject line "Rabbit Ears and
Aluminum Foil]
 "Perhaps it is time to ignore her requests[.]"

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

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

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

to the internet. Following the meeting, the school conducted

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

of harm was insufficient to require mitigating efforts. On May

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

requested that all further communications concerning the issue be

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

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

"refrain from contacting other Fay employees or trustees"

concerning the issue. Mother continued to email an array of Fay

- 6 -
School staff members concerning the Wi-Fi issue and requested a

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

request to meet.

Around this same time, Mother brought G to his primary

care provider complaining that her son suffered symptoms, such as

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

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

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

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

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

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

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

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

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

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

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

diagnosis, which the family did not provide.

In September 2014, after Mother and Father continued to

contact members of the school community about the dangers of

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

School's Parents Association. According to the Parents'

Association, Mother was removed because she had organized a

discussion on Wi-Fi safety with the Parents Independent School

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

- 7 -
and the Parents Association "were aware and in support of this

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

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

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

stated in part:

You have the opportunity and privilege, not the
right, to send your child to Fay School. As
parents, you do have the right to determine for
yourself whether the School's environment is
appropriate for your children. However, as
previously indicated, we will not engage in further
dialogue with you concerning Wi-Fi safety, and we
will not allow you to continue to disrupt our school
community.

On November 14, 2014, Mother and Father formally

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

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

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

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

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

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

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

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

known in scientific literature to create biologically

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

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

any way while developing or instituting these accommodations." On

December 8, the school responded, explaining that it needed

- 8 -
additional medical documentation "to fully evaluate [the family's]

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

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

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

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

specify any functional limitations due to any disability."

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

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

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

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

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

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

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

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

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

be accommodated in an environment with reduced exposure to EMFs.

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

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

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

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

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

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

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

is implicated," the school said that it would allow the parents to

- 9 -
do a "walk-through" and would make reasonable attempts to

accommodate G.

On June 30, 2015, an independent medical specialist

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

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

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

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

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

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

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

controlled, validated scientific data to support any relationship

between electromagnetic radiation and G's myriad reported

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

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

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

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

original complaint in this action against Fay. The school

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

if G completed the second independent medical exam, as earlier

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

neurologists. Neither diagnosed G with EHS.

Between August and October 2015, the family conducted a

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

visits, Fay agreed to install an ethernet port in each of G's

- 10 -
classrooms so that he could connect his laptop to the internet

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

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

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

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

symptoms.

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

medical leave, Mother and Father demanded that the school either

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

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

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

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

February, filed an amended complaint.

Since the amended complaint was filed, G has completed

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

that operate without Wi-Fi.

C. Procedural History

The family filed the operative complaint on February 11,

2016, alleging claims of disability discrimination against the Fay

School under Titles III and V of the Americans with Disabilities

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

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

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

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

- 11 -
§§ 12182(a), 12203(a) ("Title V"). The family also alleged common

law claims of breach of contract, misrepresentation, and

negligence against the Fay School and Gustavson, seeking damages

and injunctive relief.

Fay moved in limine to exclude the reports, opinions,

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

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

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

introduce the evidence of Dr. Hubbuch to establish the existence

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

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

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

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

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

"a scientifically reliable basis linking the constellation of

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

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

4"[I]t is the responsibility of the trial judge to ensure
that an expert is sufficiently qualified to provide expert
testimony that is relevant to the task at hand and to ensure that
the testimony rests on a reliable basis." Beaudette v. Louisville
Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006). At a Daubert
hearing, a judge evaluates the admissibility of expert testimony
under the factors articulated by the Supreme Court in the Daubert
decision: (1) whether an expert's theory or technique can and has
been tested; (2) whether it has been subjected to peer review; (3)
its error rate; and (4) its acceptance within the relevant
discipline. See 509 U.S. at 593–94.

- 12 -
her efforts to identify and exclude other environmental factors at

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

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

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

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

Fay then moved for summary judgment. The district court,

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

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

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

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

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

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

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

disability, as required for the Title III disability

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

of the family's breach of contract claim are insufficiently

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

support a finding that Fay made a knowing misrepresentation to the

family, as required for the family to prevail on its

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

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

- 13 -
limits, negating any possible claim of negligence. Id. at 396-

97, 400-01.5

The family moved for reconsideration of the court's

order as to their misrepresentation and contract claims, and the

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

retaliation claim. The school argued that the retaliation claim

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

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

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

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

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

available remedy for a Title V retaliation claim premised upon

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

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

family had sought an order prohibiting the school from retaliating

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

highest grade that the school offers) at another private school

5 The district court separately concluded that it must enter
judgment against the family on the claims against Gustavson in his
individual capacity. G, 282 F. Supp. 3d at 401. It found
insufficient evidence that Gustavson benefited in any way from his
participation in the allegedly tortious conduct of the school, as
required to "pierce the corporate veil." Id. (citing Jones v.
Experian Info. Sols., Inc., 141 F. Supp. 3d 159, 162 (D. Mass.
2015)). The family does not address Gustavson's individual
liability in its brief. The claims against Gustavson in his
individual capacity are therefore waived. See Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011).

- 14 -
and there was "no reasonable anticipation that G [would] again be

a student at the Fay School."

On appeal, the G family argues that judgment for the

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

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

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

equitable claim for nominal damages. The family also argues that

summary judgment for Fay on the breach of contract and

misrepresentation claims should be vacated. Asserting that the

district court erroneously concluded that select terms of the

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

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

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

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

appeal initially sought review of the district court's judgment

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

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

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

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

by the Fay School.

II.

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

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

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

- 15 -
has opposed a practice made unlawful under Title III. The question

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

under Title V that he was retaliated against after opposing a

practice made unlawful under Title III. Our review of this

question of statutory interpretation is de novo.

A. Statutory Background

The ADA is a comprehensive disability rights statute;

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

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

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

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

Title III prohibits disability discrimination in any place of

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

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

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

individual who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

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

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

accommodation" is expansively defined and includes twelve

6 Titles II and IV of the ADA prohibit disability
discrimination by public entities and in telecommunications,
respectively. See 42 U.S.C. § 12132; 47 U.S.C. § 225.

- 16 -
categories of places, ranging from "service establishment[s],"

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

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

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

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

§ 12181(7)(j).

Although Title III is expansive in its application, the

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

provides the remedial scheme for that title by incorporating the

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

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

institute "a civil action for preventive relief, including an

application for a permanent or temporary injunction, restraining

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

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

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

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

"preventive" injunctive relief. See id.

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

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

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

7 Title V also includes technical provisions, such as a rule
of construction, see 42 U.S.C. § 12201, and a rule of severability,
see id. § 12213.

- 17 -
protects individuals who exercise their rights under Titles I, II,

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

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

retaliatory response to that protected conduct. See Oliveras-

Sifre v. P.R. Dep't of Health, 214 F.3d 23, 26 (1st Cir. 2000).

Section 12203(c) specifies the remedies available under

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

The remedies and procedures available under
sections 12117, 12133, and 12188 of this title
shall be available to aggrieved persons for
violations of subsections (a) and (b) of this
section, with respect to subchapter I, subchapter
II and subchapter III of this chapter,
Respectively.

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

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

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

for Title I, which concerns disability discrimination in the

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

II, which concerns disability discrimination in public services);

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

concerns disability discrimination in places of public

accommodation).

At issue is the meaning of that remedial scheme. The

family argues that any remedy or procedure available under sections

- 18 -
12117, 12133, or 12188 is available for the retaliation claim.8

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

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

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

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

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

provision, which provides only for injunctive relief) applies.

B. Analysis

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

statutory construction, 'the beginning point must be the language

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

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

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

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

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

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

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

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

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

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

8The Fay School argues that the family did not request
damages, nominal or otherwise, in connection with the retaliation
claim before the district court. We assume arguendo, and favorably
to the family, that it adequately preserved the issue of damages
and nominal damages for the retaliation claim.

- 19 -
those provided for in § 12117 (the Title I remedial provision), or

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

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

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

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

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

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

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

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

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

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

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

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

respectively, Macmillan Dictionary (online ed.),

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

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

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

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

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

something previously mentioned, in the same order as first

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

- 20 -
https://dictionary.cambridge.org/us/dictionary/english/respective

ly.

Applying this common meaning, the "respectively"

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

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

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

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

remedies is available under Title V for retaliation depending upon

the discriminatory practice opposed -- the remedies specified in

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

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

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

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

III.

Because here the underlying practice that was opposed is

disability discrimination in a place of public accommodation,

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

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

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

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

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

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

- 21 -
not provide for compensatory damages. Id.; see 42 U.S.C. § 2000a-

3(a).

To adopt the family's interpretation that all of the

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

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

the retaliation, would render the "respectively" language in

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

the basic interpretive canon that a statute ought to be construed

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

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

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

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

We also reject the family's argument that interpreting

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

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

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

a plaintiff to recover only injunctive relief for a discrimination

9
The family cites several decisions of other circuit courts
to support its interpretation of Title V's remedies provision.
Those cases, however, concern the availability of damages for a
retaliation claim premised upon conduct protected under Title
I -- not Title III. See, e.g., Salitros v. Chrysler Corp., 306
F.3d 562, 569-70 (8th Cir. 2002) (reasoning that there was
sufficient evidence that the plaintiff engaged in protected
activity and was retaliated against in the employment context such
that a jury award of damages was proper).

- 22 -
action brought under Title III. Goodwin, 436 F.3d at 49–51; see

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

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

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

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

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

provision as providing only injunctive relief for a Title V claim

premised upon opposition to violations of Title III is thus

entirely consistent with the scheme of the ADA.

Finally, the family's claim for nominal damages under

Title V fares no better. The applicable enforcement provision,

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

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

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

damages recognize a past wrong by providing plaintiffs "the moral

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

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

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

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

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

Accordingly, judgment for the school on the family's

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

- 23 -
grade has mooted the claim for preventive injunctive relief, the

only relief available to the family under that title.

III.

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

on the breach of contract and misrepresentation claims.

Massachusetts substantive law governs these claims. See Cloud v.

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

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

We review a grant of summary judgment de

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

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

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

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

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

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

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

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

A. Breach of Contract

The breach of contract claim is based on certain terms

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

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

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

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

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

- 24 -
1115, 1122 (1st Cir. 1995). Such an agreement may be memorialized

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

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

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

at 724 (concerning contract claims based upon a university handbook

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

student handbook are contractually enforceable, Massachusetts

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

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

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

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

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

generalized representations are not contractually enforceable.

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

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

On appeal, the family argues that certain terms of the

handbook constitute a sufficiently definite and certain agreement

between the family and the school to be contractually enforceable.

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

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

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

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

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

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

- 25 -
central aspect of healthy communities," and "All members of the

Fay community are committed to making a positive difference in the

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

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

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

a resource for understanding"). Without diminishing the

importance of these words, they are exactly the sort of

generalized, aspirational statements that are insufficiently

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

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

(distinguishing well-defined procedures and policies, which can

form contractual promises, from "generalized representations,"

which cannot).

Although acknowledging that the handbook includes some

"aspirational statements" too indefinite to form a contractual

promise, the family argues that select portions of the handbook

are "sufficiently specific for reliance and thus for enforcement

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

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

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

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

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

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

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

- 26 -
where it does not appear").10 If the handbook did contain such

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

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

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

to identify terms in the handbook that are sufficiently definite

and certain to form a binding contract. This understanding is

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

which specifically states that the handbook "set forth general

expectations regarding the Students' enrollment at the School,"

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

Summary judgment on the contract claim was therefore properly

granted.

10 The family's brief states:

[The family] relied upon . . . the assurance that Fay would
help when students are "in physical need," "work with," and
"respect" any such student. Certainly, when read together,
these were specific enough to create [reasonable reliance].

The family cites pages of the handbook for support. Those pages
include scattered references to "respect." ("[R]espect . . .
inform[s] our conduct."; "Mutual respect and civility are central
aspects of healthy communities."; "[W]e . . . [f]oster close
relationships based on dignity and respect."). Additionally, the
pages contain the statement that "Fay [] students . . . [s]eek
help when they are in . . . physical need." These statements are
not equivalent to the specific promises alleged by the family --
that the school will work with or help students in physical need.

- 27 -
B. Misrepresentation

To prevail on the misrepresentation claim, the family

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

knowledge of its falsity, which the family members reasonably

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

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

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

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

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

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

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

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

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

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

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

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

statements in its handbook.

11 The district court treated the family's misrepresentation
claim as a claim of willful or reckless misrepresentation, which
requires a knowing scienter. See O'Connor v. Merrimack Mut. Fire
Ins. Co., 897 N.E.2d 593, 600 (Mass. App. Ct. 2008). By contrast,
a claim of negligent misrepresentation requires only a showing
that a statement was made with a failure to exercise "reasonable
care." Id. (quoting Nota Constr. Corp. v. Keyes Assocs., Inc.,
694 N.E.2d 401, 405 (Mass. App. Ct. 1998)). On appeal, the family
does not argue that its claim should be treated as a claim of
negligent misrepresentation, and it agrees that the necessary
scienter for the claim is "knowledge of falsity."

- 28 -
 The 2014/2015 handbook states, "[R]espect,

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

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

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

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

is evidence that the school knew that its handbook statements were

false when the handbook was issued.

In context, the stray email comments, although perhaps

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

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

the contrary, the school demonstrated receptiveness to Mother's

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

even without receiving full documentation of G's disability,

altering its system of instruction and classroom orientation to

accommodate G.

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

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

12
We have doubts that these sorts of aspirational statements
could support a misrepresentation claim. See Cummings, 244 F.3d
at 21 ("There is an important threshold determination for any
misrepresentation claim . . . . [O]nly statements of fact are
actionable."); McEneaney v. Chestnut Hill Realty Corp., 650 N.E.2d
93, 96 (Mass. App. Ct. 1995) (statements concerning "matters of
judgment" or "value" are not actionable for misrepresentation)
(quoting Restatement (Second) of Torts § 538A (1977)). However,
neither party argues about the nature of the language, and we
therefore do not consider that question.

- 29 -
for a reasonable factfinder to conclude that Fay knew that the

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

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

in 2013, recommending that schools include such a disclaimer in

their student handbooks because "carefully crafted disclaimer

language may help your school avoid a claim that the handbook

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

family argues that this article is evidence that the school

included a disclaimer in its student handbook because it knew that

the statements in the handbook were false when the handbook was

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

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

document, of questionable relevance, is unauthenticated, and

therefore inadmissible at the summary judgment stage. See Carmona

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

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

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

for including a legal disclaimer in its handbook. The family

cannot fend off summary judgment with "conclusory allegations

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

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

13 The G family also appeals from the district court's
exclusion of Dr. Hubbuch's testimony. See G, 282 F. Supp. 3d at
391. Although the family concedes the mootness of the
accommodation claim, it argues that the testimony is not moot

- 30 -
 IV.

For the foregoing reasons, we affirm the district

court's entry of judgment for Fay.

So ordered.

because the testimony is relevant to the other claims. However,
even if there was some relevance to that testimony before this
appeal, the testimony is no longer relevant in light of this
decision, affirming the entry of judgment on the family's remaining
claims for reasons wholly unrelated to causation.

- 31 -