A.S. v. HARRISON TOWNSHIP BOARD OF EDUCATION et al

Filing 166

OPINION. Signed by Judge Noel L. Hillman on 8/18/2016. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
A.S., et al.,
Plaintiffs,

Civil No. 14-147 (NLH/KMW)

v.

OPINION

HARRISON TOWNSHIP BOARD OF
EDUCATION, et al.,
Defendants.
__________________________________
APPEARANCES:
Jamie Epstein, Esquire
107 Cherry Parke, Suite C
Cherry Hill, New Jersey 08002
Counsel for Plaintiff
Brett E.J. Gorman, Esquire
Parker McCay PA
9000 Midlantic Drive
Suite 300
Mt. Laurel, New Jersey 08054
Counsel for Defendant Harrison Township Board of Education

HILLMAN, District Judge
Presently before the Court is a motion for reconsideration
filed by Defendant Harrison Township School District [Doc. No.
155].

Harrison seeks reconsideration of the Court’s April 29,

2016 Opinion and Order on the administrative record.
Specifically, Harrison requests that the Court reconsider: (1)
its Order for 72 hours compensatory education from September 4,
2014 through September 19, 2014, rather than the 10 hours
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ordered by the administrative law judge; and (2) its Order that
72 hours of compensatory education be provided in a trust fund
to pay Partners in Learning.

For the reasons to be discussed,

Harrison’s motion will be denied.
A judgment may be altered or amended only if the party
seeking reconsideration shows: (1) an intervening change in the
controlling law; (2) the availability of new evidence that was
not available when the court granted the motion for summary
judgment; or (3) the need to correct a clear error of law or
fact or to prevent manifest injustice.

Max's Seafood Cafe ex

rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999).

A motion for reconsideration may not be used to re-

litigate old matters or argue new matters that could have been
raised before the original decision was reached, P. Schoenfeld
Asset Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352
(D.N.J. 2001), and mere disagreement with the Court will not
suffice to show that the Court overlooked relevant facts or
controlling law, United States v. Compaction Sys. Corp., 88 F.
Supp. 2d 339, 345 (D.N.J. 1999), and should be dealt with
through the normal appellate process, S.C. ex rel. C.C. v.
Deptford Twp Bd. of Educ., 248 F. Supp. 2d 368, 381 (D.N.J.
2003).
Harrison’s motion appears to be predicated on correcting an
error of law or fact.

The Court first considers whether it
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erred in awarding Plaintiffs 72 hours of compensatory education,
rather than the 10 hours awarded by the administrative law judge
(ALJ).

In their motion for summary judgment, Plaintiffs argued

that the ALJ correctly awarded Plaintiff A.S. compensatory
education for the twelve days he was denied any type of
education from September 4-19, 2014.

Plaintiffs argued,

however, that ALJ erred in only awarding ten hours per week of
home instruction when she should have awarded 72 hours, which
accounts for the hour-for-hour that the District denied A.S. any
type of educational benefit.

The Court found that A.S. was

entitled to 72 hours of compensatory education because: “The
Court believes an award of full days of compensatory education
are appropriate where A.S. received no educational benefit
during this time.”

(Op. at 13.)

The Court also found that

Harrison did not put forth a meaningful opposition to
Plaintiffs’ argument in their brief.

(Id.)

Harrison requests that the Court reconsider that Order
because it opposed Plaintiff’s request for 72 hours of
compensatory education.

Harrison’s opposition to this award is

based upon the special education regulations, specifically
N.J.A.C. 6A:14-4.8, which Harrison argues sets “the legal
requirement for home instruction for disabled students at 10
hours per week.” (Br. at 4.)

Read carefully, N.J.A.C. 6A:14-4.8

requires that: “Instruction shall be provided for no fewer than
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10 hours per week.”

N.J.A.C. 6A:14-4.8(a)(4).

The sources

cited by the District support the Court’s plain reading of the
statute.

See New Jersey Dep’t of Educ. Complaint Investigation

C2012-4341, 2012 N.J. Super. Unpub. LEXIS 2294 (App. Div. Oct.
11, 2012) (finding that five hours of instruction was
insufficient pursuant to N.J.A.C. 6A:14-4.8); M.M. v. Woodcliff
Lake Bd. Of Edu., OAL Docket EDS-728-92 (September 28, 1992)
(ordering “no fewer than” 10 hours of home instruction pursuant
to N.J.A.C. 6A:14-4.8).

While these two opinions did not

specifically find more than 10 hours of home instruction
warranted under the facts of the case, the statute clearly
states that 10 hours is the minimum, not maximum award.

In its

April 29, 2016 Opinion, the Court found that 72 hours of
compensatory education, rather than 10 hours, was appropriate
because A.S. “received no educational benefit” between September
4-19, 2014.
“[C]ourts, in the exercise of their broad discretion, may
award [compensatory education] to whatever extent necessary to
make up for the child's lost progress and to restore the child
to the educational path he or she would have traveled but for
the deprivation.”

G.L. v. Ligonier Valley Sch. Dist. Auth., 802

F.3d 601, 625 (3d Cir. 2015); see also M.C. on Behalf of J.C. v.
Cent. Reg'l Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996) (“a
school district that knows or should know that a child has an
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inappropriate IEP or is not receiving more than a de minimis
educational benefit must correct the situation. If it fails to
do so, a disabled child is entitled to compensatory education
for a period equal to the period of deprivation, but excluding
the time reasonably required for the school district to rectify
the problem.”); Lester H. by Octavia P. v. Gilhool, 916 F.2d
865, 873 (3d Cir. 1990) (Congress “allow[s] the courts to
fashion an appropriate remedy to cure the deprivation of a
child's right to a free appropriate public education”).

The

Court has reconsidered Harrison’s opposition and finds no error
in law or fact and will not reverse its Order of 72 hours of
compensatory education for this period in which A.S. received no
educational benefit at all.
In its motion for summary judgment, Plaintiffs requested
that the Court order compensatory education placed in a trust
fund to pay Partners in Learning.

The Court found no opposition

to this request in Harrison’s briefs and granted Plaintiffs
relief.

Harrison argues that it opposed Plaintiffs’ request in

its opposition brief wherein it stated that payment via a trust
fund was “unprecedented” and not “cognizable.”
[Doc. No. 125].)

(Opp. Br. at 14

The Court will reconsider Harrison’s arguments

on whether a trust fund was an inappropriate mechanism to grant
Plaintiffs relief.

5

In arguing that Plaintiffs’ requested relief was
unprecedented, the District distinguished the cases cited by
Plaintiffs, Keystone Cent. Sch. Dist. v. E.E. ex rel. H.E., 438
F. Supp. 2d 519 (M.D. Pa. 2006) and Heather D. v. Northampton
Area Sch. Dist., 511 F. Supp. 2d 549, 563 (E.D. Pa. 2007),
neither of which discussed the creation of a trust fund for
compensatory education.

The parties also cited the Third

Circuit case Ferren C. v. Sch. Dist. of Philadelphia, 612 F.3d
712 (3d Cir. 2010).

In Ferren, the Third Circuit affirmed a

district court order rejecting a school district’s proposal to
fund a trust account for Ferren’s compensatory education past
her 21st birthday without providing other services including an
individualized education plan.

The district court found that it

could order the school district to do more than “write a check”
and ordered an IEP to be made.

The Third Circuit affirmed and

observed, “a ‘money-only’ type of award for Ferren is exactly
the type of empty victory that the Supreme Court sought to avoid
in [Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of
Mass., 471 U.S. 359 (1985)].”

Id. at 719-20.

Ferren must be

read narrowly, however, as the Third Circuit appeared to be
concerned with the unique situation that the school district
desired only to provide money in a trust account to satisfy its
IDEA obligations and opposed providing other educational
services past Ferren’s 21st birthday.
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The decision did not

discuss trust funds as vehicles for students to obtain
compensatory education in a substantive way and for this reason
none of these cases are helpful to the Court’s analysis.
Nonetheless, the Court finds no error of law in ordering the
District to pay compensatory education through a trust fund.
The IDEA permits courts to “grant such relief as the court
determines is appropriate.”

20 U.S.C. § 1415(i)(2)(C)(iii).

Further, the Third Circuit has stated that, “we discern nothing
in the text or history suggesting that relief under IDEA is
limited in any way . . . Congress expressly contemplated that
the courts would fashion remedies not specifically enumerated in
IDEA.”

W.B. v. Matula, 67 F.3d 484, 494-95 (3d Cir. 1995)

abrogated by A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3d
Cir. 2007) (overruled on other grounds).

Further, the creation

of trust funds is not a novel mechanism in the IDEA context.
See Charlene R. v. Solomon Charter Sch., 63 F. Supp. 3d 510, 512
(E.D. Pa. 2014) (enforcing agreement between child and charter
school which established a trust fund and finding the agreement
did not conflict with the IDEA or its purposes); J.C. ex rel.
J.C. v. Vacaville Unified Sch. Dist., No. S-05-92, 2006 WL
2644897, at *9 (E.D. Cal. Sept. 14, 2006) (ordering over $37,000
in compensatory education to be paid into a special needs trust
due to the student’s relocation).

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In the January 7, 2015 administrative law decision, the ALJ
found that A.S. was entitled to compensatory education for the
twelve days he did not attend school from September 4-19, 2014.
The ALJ further ordered that “instruction shall be provided
through Partners in Learning, which continues to provide
services to A.S. in his current educational placement.” (1/7/15
ALJ Decision at 30.)

Plaintiff requested that the Court order a

trust fund to be established to pay Partners in Learning.

The

Court finds this relief it granted in its April 29, 2015 Opinion
and Order is appropriate and will further ensure A.S. receives
the ordered compensatory education.1
Accordingly, for the foregoing reasons, the District’s
motion for reconsideration will be granted to address the
Defendant’s arguments but the earlier decision affirmed in all
respects.

An appropriate Order will be entered.
/s Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey
August 18, 2016

1
 This decision should not be read to stand for the

proposition that the creation of trust funds is appropriate in
every scenario.

8