Doe v. Thorell

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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.

The Thorells filed a special motion to dismiss the

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.