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Reported Decisions

G. v. The Fay School

The Firm successfully defended an independent school against claims by a student that he was harmed by the School’s wireless internet network (“Wi-Fi”). The student and his parents sought accommodations that would have required the School to remove or disable its Wi-Fi. The School declined the student’s requests because there was no causal connection between the School’s Wi-Fi and the student’s alleged electromagnetic hypersensitivity. The student and his parents then filed a lawsuit in federal court, alleging claims under the Americans with Disabilities Act and common law claims.


After extensive discovery and nine days of expert hearings on causation related to the alleged “Wi-Fi allergy,” the School moved to exclude Plaintiffs’ experts from testifying and moved for summary judgment on all claims.

In September 2017, the United States District Court excluded two of Plaintiffs’ experts and dismissed all of Plaintiffs’ claims except for the Title V retaliation claim. In June 2018, the Court granted the School’s motion for judgment on the pleadings and dismissed Plaintiffs’ retaliation claim, thereby dismissing the entire suit. The Court held that Plaintiffs’ retaliation claims were moot because the student had commenced ninth grade at another school and the School only extends to ninth grade. Plaintiffs then appealed.


The First Circuit appeal focused on a matter of first impression: whether damages are available under Title V of the Americans with Disabilities Act in the context of a public accommodation claim. The First Circuit found that only injunctive relief is available, and that damages are not available.

Significantly, the appeal also resolved the Plaintiffs’ common law claims for alleged breach of contract and misrepresentation based on the School’s Student Handbook. As the First Circuit explained, the enrollment contract (if properly drafted) is the sole contract between the family and the School. The Student Handbook (if properly drafted) does not create a contract between the family and the School.

In so finding, the First Circuit specifically noted that the enrollment agreement recited that the Student Handbook “does not constitute a contract,” and the First Circuit relied upon this enrollment agreement language in rendering its decision in favor of the School.

In sum, the Court recognized that the School’s enrollment agreement was drafted as an enforceable contract, while the Student Handbook was purely aspirational and not contractual. This is an excellent result for independent schools, and a reminder of the importance of having a well-drafted enrollment agreement and student handbook.

On July 17, 2019, the United States Court of Appeals for the First Circuit affirmed the judgment for the School on all counts, finding entirely for the School.

The First Circuit opinion is available here. A recent article about the legal significance of the First Circuit Decision, by Massachusetts Lawyers Weekly, is available here.

In February of 2019, Sara Goldsmith Schwartz argued this case at the First Circuit. The oral argument can be heard here.

Download the Massachusetts Lawyers Weekly article
Download the First Circuit Opinion