K.G. VS. CINNAMINSON TOWNSHIP BOARD OF EDUCATION
Filing
26
OPINION. Signed by Judge Noel L. Hillman on 9/19/2018. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
K.G., individually, and as
guardian ad litem of R.L.
Plaintiff,
1:17-cv-04740-NLH-JS
OPINION
v.
CINNAMINSON TOWNSHIP BOARD OF
EDUCATION,
Defendant.
APPEARANCES:
LORI MICHELLE GAINES
ASHLEY N. RICHARDSON
BARGER & GAINES
555 ROUTE ONE SOUTH
SUITE 340
ISELIN, NJ 08830
On behalf of Plaintiff
ERIC L. HARRISON
JARED SAMUEL SCHURE
JOSEPH D. CASTELLUCCI, JR.
METHFESSEL & WERBEL, ESQS.
2025 LINCOLN HIGHWAY
PO BOX 3012
SUITE 200
EDISON, NJ 08818-3012
On behalf of Defendant
HILLMAN, District Judge
Presently before the Court the are cross–motions for
summary judgment filed by Plaintiff, K.G. on behalf of her minor
daughter, R.L., a child classified as eligible for special
educational services under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and by
Defendant Cinnaminson Township Board of Education.
Plaintiff
appeals the decision of the administrative law judge (“ALJ”) who
declined to find that Defendant failed to provide R.L. with a
free appropriate public education (“FAPE”) in the least
restrictive environment, and declined to direct Defendant to
reimburse Plaintiff for tuition when Plaintiff unilaterally
placed her daughter in an out-of-district private school.
For
the reasons expressed below, the Court will enter judgment in
favor of Defendant.
BACKGROUND
Plaintiff, K.G., is the mother and legal guardian of R.L.,
who was thirteen during the relevant time period, and who is
classified as eligible for special education and related
services.
R.L. is diagnosed with Epilepsy and Landau-Kleffner
Syndrome, a syndrome which results in language-function
deterioration.
She also suffers from left-hemisphere epileptic
seizures from a condition known as Perisylvian Syndrome caused
by a brain fissure.
R.L. requires a ketogenic diet that is high
in fat and low in carbohydrates.
R.L. is also diagnosed with
Attention Deficit Hyperactivity Disorder, Oppositional Defiant
Disorder, Autism Spectrum Disorder, language disorder, and
emotional lability.
R.L. has received special education and related services
since the age of six when she attended her local public school
2
program in the Berlin Township, New Jersey school district.
She
was thereafter placed at specialized, out-of-district programs
under the provisions of her IEP from first grade (2010-2011)
through October of 2014, when her family moved to Cinnaminson,
New Jersey.
Plaintiff continued R.L. at the Quaker School at
Horsham (“QSH”), R.L.’s out-of-district placement under the
Berlin Township School District’s IEP, and Defendant ultimately
agreed to continue R.L.’s placement at QSH for the remainder of
the 2014-2015 school year.
Because, according to Plaintiff, Defendant still had not
proposed any programming or placement for R.L. for the 2015
extended school year or the 2015-2016 school year, Plaintiff
provided Defendant with formal, written notice of her intention
to unilaterally continue R.L.’s placement at QSH.
Plaintiff
contends that even though Defendant scheduled an individualized
educational plan (“IEP”) meeting on June 3, 2015, Defendant had
already predetermined, without input from Plaintiff who is part
of R.L.’s child study team, that R.L. would be placed at public
school in the district.
Plaintiff claims that Defendant’s
proposed program was inappropriate and not reasonably calculated
to confer a significant and meaningful educational benefit upon
R.L.
Plaintiff made this determination based upon private
recommendations from the team of professionals working with R.L.
who found that R.L. required the specialized programming
3
provided at QSH in order to be appropriately educated.
Plaintiff therefore unilaterally continued R.L.’s placement at
QSH for the 2015 extended school year as well as the 2015-2016
school year. 1
Plaintiff filed for a due process hearing on June 16, 2015.
The matter was transmitted to the Office of Administrative Law
on September 15, 2015.
Hearing dates were scheduled and the
matter was heard before an Administrative Law Judge (“ALJ”), the
Honorable Joseph A. Ascione, on May 23, June 13, July 22, August
3, and August 15, 2016.
Just prior to the first hearing date,
Defendant convened an IEP meeting on May 5, 2016 to propose
R.L.’s educational program for the 2016-2017 school year.
The
ALJ issued a decision on March 30, 2017 considering both the
June 2015 proposed IEP and the May 2016 proposed IEP.
The ALJ
found that Defendant provided a FAPE in the LRE to R.L. in the
June 2015 IEP and the May 2016 IEP because those IEPs had the
capacity to address R.L.'s educational needs.
The ALJ also
found that Plaintiff denied Defendant the ability to determine
if services for the 2016 extended school year were appropriate.
1
As discussed in more detail below, a parent who believes that a
school district is not providing his or her child a FAPE may
unilaterally remove the child from public school, enroll the
child in private school, and then file a due process petition
seeking reimbursement for the cost of the child's placement in
the alternative school. Munir v. Pottsville Area Sch. Dist.,
723 F.3d 423, 426 (3d Cir. 2013) (citing 20 U.S.C. §
1412(a)(10)(C)).
4
The ALJ accordingly denied Plaintiff’s claim for private
placement for R.L. at QSH, and denied Plaintiff’s claims for
reimbursement for tuition at QSH for the 2015 and 2016 extended
school years and school year 2015-2016.
Plaintiff has appealed the decision of the ALJ to this
Court.
Plaintiff claims that the ALJ erred by improperly
ignoring Plaintiff’s expert testimony and reports; by improperly
considering testimony about programming that Defendant did not
actually propose for R.L.; by improperly holding that Plaintiff
denied Defendant an opportunity to modify its proposed
educational program for R.L.; and by improperly holding that a
determination about appropriateness can never be made unless a
student first tries the program. 2
Defendant argues that it
fulfilled its obligations to R.L. under the IDEA, and the ALJ’s
decision must be affirmed.
Both parties have moved for summary
judgment in their favor.
DISCUSSION
A.
Subject matter jurisdiction
This Court has jurisdiction over this matter pursuant to 20
2
Plaintiff argues in the introduction of her brief that the ALJ
improperly qualified Defendant’s witnesses as experts. (Docket
No. 16 at 7.) It is clear from the record, however, as well as
later on in Plaintiff’s brief, that the ALJ did not qualify
Defendant’s witnesses as experts. (Docket No. 16 at 11.) This
issue is discussed in more detail below.
5
U.S.C. § 1415(i)(2)(A) 3 and 28 U.S.C. § 1331.
B.
Standard of Review under the IDEA
Federal funding of state special education programs is
contingent on the states providing a “free appropriate public
education” to all disabled children.
S.H. v. State-Operated
School Dist. of City of Newark, 336 F.3d 260, 264 (3d Cir. 2003)
(citing 20 U.S.C. § 1412).
The IDEA is the vehicle Congress has
chosen to ensure that states follow this mandate.
20 U.S.C. § 1400 et seq.)
Id. (citing
The IDEA “protects the rights of
disabled children by mandating that public educational
institutions identify and effectively educate those children, or
pay for their education elsewhere if they require specialized
services that the public institution cannot provide.”
D.K. v.
Abington Sch. Dist., 696 F.3d 233, 244 (3d Cir. 2012) (citation
omitted).
Once a school district has identified a child who is
eligible for IDEA services, it must create and implement an
3
20 U.S.C. § 1415(i)(2)(A) provides, in relevant part:
Any party aggrieved by the findings and decision made under
subsection (f) or (k) who does not have the right to an
appeal under subsection (g), and any party aggrieved by the
findings and decision made under this subsection, shall
have the right to bring a civil action with respect to the
complaint presented pursuant to this section, which action
may be brought in any State court of competent jurisdiction
or in a district court of the United States, without regard
to the amount in controversy.
6
Individualized Education Plan (“IEP”) based on the student’s
needs and areas of disability.
Munir v. Pottsville Area Sch.
Dist., 723 F.3d 423, 426 (3d Cir. 2013) (citation omitted).
School districts are not required to “maximize the potential” of
each disabled student, and instead the district must offer an
IEP that is “reasonably calculated to enable the child to
receive meaningful educational benefits in light of the
student’s intellectual potential.”
omitted).
Id. (citations and quotation
The IDEA also includes a “mainstreaming” component
requiring the placement of a student with disabilities in the
least restrictive environment (“LRE”) that will provide the
child with a meaningful educational benefit.
D.S. v. Bayonne
Bd. of Educ., 602 F.3d 553, 556–57 (3d Cir. 2010).
The IDEA establishes a private cause of action against a
school district that fails to abide by its legal obligations.
The parent or guardian of a minor student who is denied the
rights and procedures set forth in the IDEA is afforded the
opportunity to file an administrative complaint.
C.H. v. Cape
Henlopen School Dist., 606 F.3d 59, 66 (3d Cir. 2010) (citing 20
U.S.C. §§ 1415(b)(6), (i)(2)).
In New Jersey, this process
entails filing a complaint and request for a due process hearing
with the New Jersey Department of Education, N.J.A.C. 6A: 14–
2.7(c), and the due process hearing is conducted by an ALJ in
New Jersey's Office of Administrative Law, N.J.A.C. 6A: 14–
7
2.7(g).
Aggrieved parties may appeal the ALJ's final decision
by filing a civil action in state or federal court.
20 U.S.C. §
1415(i)(2).
The Supreme Court has directed that a school district’s
liability for violations of the IDEA is a two-fold inquiry: (1)
Has the school district complied with the procedures set forth
in the IDEA?; and (2) Has the school district fulfilled its
obligation to provide the student with a FAPE?
C.H., 606 F.3d
at 66 (citing Bd. of Educ. of Hendrick Hudson Central Sch. Dist.
v. Rowley, 458 U.S. 176, 206–07 (1982)).
The district court applies a “modified version of de novo
review.”
Munir, 723 F.3d at 430 (quoting L.E. v. Ramsey Bd. of
Educ., 435 F.3d 384, 389 (3d Cir. 2006)).
The reviewing court
gives “due weight” to the underlying administrative proceedings,
with the factual findings from the administrative proceedings to
be considered prima facie correct.
S.H. v. State-Operated
School Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)
(citation omitted) (further explaining that if a reviewing court
fails to adhere to the ALJ’s factual findings, it is obliged to
explain why).
“The court is not . . . to substitute its own
notions of sound educational policy for those of local school
authorities.”
Id. (citations omitted).
District courts must
accept the hearing officer’s credibility determinations “unless
the non-testimonial extrinsic evidence in the record would
8
justify a contrary conclusion.”
Shore Reg'l High Sch. Bd. of
Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004)
(citation omitted).
“In this context[,] the word ‘justify’
demands essentially the same standard of review given to a trial
court's findings of fact by a federal appellate court.”
Id.
The burden of proof in a proceeding to receive reimbursement is
placed on the party seeking relief.
C.
L.E., 435 F.3d at 391–92.
Analysis
1.
The ALJ’s Decision
The ALJ made the following findings of fact:
1.
K.G.'s daughter R.L., age thirteen, presents with a
learning disability, occasioned by her diagnoses of epilepsy
and Landau-Kleffner syndrome. Her classification of "other
health impaired" entitles her to special-education services.
2.
In 2013, K.G. placed R.L. at QSH prior to moving into
Cinnaminson Township.
3.
Toward the end of 2014, K.G. moved into Cinnaminson
Township. The parties entered a settlement agreement, with the
Board preserving the right to contest that QSH qualified as
the stay-put placement.
4.
Representatives of the Board observed R.L. at QSH on
three occasions in the first half of 2015, and attempted to
test her educational abilities.
5.
The interim agreement and these observations were done
consistently within the procedural parameters of obtaining the
necessary information to complete an appropriate IEP.
Petitioner received compensation for R.L.'s education and
transportation during the time the Board was conducting its
evaluations and assessment.
6.
One of R.L.'s disabilities is manifested in her test
taking. She performs poorly due to her disabilities and
behavioral reticence to take tests. This fact was confirmed by
her own neuropsychologist.
9
7.
The Board formed the same conclusion, i.e., R.L. did
not test to her abilities.
8.
Representatives of the Board testified that R.L. said
that her mother advised her that she could refuse to answer
assessment questions.
9.
In June 2015 the parties met to work on an IEP for the
2015-2016 school year.
10. The Board prepared a proposed IEP in advance of the
meeting.
11. K.G. met with the child study team for the IEP
meeting, but did not provide input at the meeting and
requested that she be allowed to submit comment after the
meeting. K.G. did not provide comment.
12. The Board provided an IEP with services similar to the
services R.L. had received at QSH, but within district, for
school year 2015-2016.
13. K.G. rejected the Board’s suggested placement and
continued R.L.’s education at QSH.
14. Due to medical reasons, R.L. lost thirty class days in
2014 and forty-five class days in 2015.
15. K.G. failed to cooperate with the Board in working on
an IEP.
(Docket No. 1 at 13-15.)
The ALJ made the following legal conclusions:
The issue here is whether the Board provided R.L. with
FAPE. I CONCLUDE that the Board attempted to provide FAPE to
R.L. in the LRE. This attempt was thwarted by the parent, who
refused to consider placement within the district. While
K.G.'s reservations about a change of placement are
understandable, she has presented an insufficient legal basis
upon which to direct the school district to maintain R.L.'s
program at QSH.
The question of whether R.L. was provided with FAPE by the
district covers the 2015-2016 school year and the 2016-2017
school year.
10
I CONCLUDE that the Board did provide FAPE in the LRE to
R.L. in the June 2015 IEP and the May 2016 IEP because those
IEPs had the capacity to address R.L.'s educational needs.
The petitioner prevented the Board from addressing R.L.'s
needs or adjusting the IEP to meet her needs by depriving it
of the opportunity to demonstrate the education available to
R.L. at Cinnaminson.
R.L. went to QSH in the summers of 2015 and 2016. The
Board agreed to reimburse petitioner through June 30, 2015,
and provided an IEP for the 2015-2016 school year. Thereafter
this due-process hearing commenced. There was not sufficient
proof that R.L. regressed during the months of July and August
2015. I CONCLUDE that petitioner is not entitled to
reimbursement for sending R.L. to QSH in July-August 2015.
The parties stipulated that the Board would compensate K.G.
for placement of R.L. at QSH for school year 2014-2015,
without conceding that it was the stay-put placement of R.L.
Having concluded that the Board provided FAPE in the LRE in
its 2015 and 2016 IEPs, I further CONCLUDE that petitioner is
not entitled to reimbursement for amounts expended except as
previously negotiated between the parties.
As to the question of whether the Board denied FAPE to R.L.
during the 2016 extended school year, I CONCLUDE that the
parent denied the Board the ability to determine if services
for the 2016 extended school year were appropriate.
Accordingly, the Board attempted to provide FAPE in the LRE
for the 2016 extended school year, and K.G. is not entitled to
reimbursement for those expenditures.
(Id. at 17-19.)
The ALJ accordingly denied Plaintiff’s claim for private
placement for R.L. at QSH, and denied Plaintiff’s claims for
reimbursement for tuition at QSH for the 2015 and 2016 extended
school years and school year 2015-2016.
11
(Id. at 19.)
2.
Plaintiff’s arguments for reversal
a.
The ALJ improperly ignored Plaintiff’s expert
testimony and reports
Plaintiff argues that even though the ALJ properly declined
to qualify Defendant’s child study team members as experts, the
ALJ erred by heavily relying upon their testimony despite their
fact witness status, and improperly discounting Plaintiff’s
experts. 4
The Court does not agree.
The ALJ outlined each proffered expert’s qualifications and
opinions (Docket No. 1-3 at 4-11), and articulated which
testimony he found credible and persuasive, while explaining why
he discounted other testimony (id. at 11-13).
Even though the
ALJ’s discussion of the expert testimony is a brief summary in
comparison to hundreds of pages of transcribed testimony, the
ALJ focused on the main issues of contention for the claims
raised by Plaintiff’s due process complaint, and pinpointed the
relevant evidence to support his decision.
For example, the ALJ noted that Plaintiff’s expert, Jeanne
Tighe, testified that R.L. had a very low frustration tolerance
and could not easily be brought back once she began to shut down,
but the ALJ further noted that Tighe’s expertise was in the
4
Defendant states the ALJ erred by not qualifying its witnesses
as experts, but that error is harmless because of the ALJ’s
ultimate decision in Defendant’s favor.
12
speech/language area, and not the behavioral/neuropsychological
area.
(Id. at 12.)
The ALJ further noted, “Tighe testified to a
severe language disorder, but did not note that conclusion in her
December 2013 observation of R.L. at QSH.
Her report goes beyond
her area of expertise, and makes the conclusory opinion that the
Board cannot provide a meaningful educational benefit to R.L.
Her testimony does not dissuade this tribunal that the Board
needs to be afforded the opportunity to educate R.L.”
(Id.)
Plaintiff urges the Court to credit her experts more than
the ALJ did, but Plaintiff does not point to other
nontestimonial evidence that undermines the ALJ’s consideration
of those experts’ testimony.
The Court cannot credit a witness
who expressed a contrary opinion by merely reassessing the same
testimony heard by the ALJ.
See Shore Regional High School Bd.
of Educ., 381 F.3d at 199–200 (finding that the district court
did not give the requisite deference to the ALJ's evaluation of
the witnesses’ credibility, where both the ALJ and the district
court were confronted with conflicting opinions by experts on
the question of whether the offered placement constituted a
FAPE, but the ALJ had heard the witnesses during a hearing that
extended over four days, and the district court simply chose to
credit a witness who expressed a contrary opinion without
pointing to any “nontestimonial evidence” that undermined the
testimony of these witnesses); id. (“We do not suggest that [one
13
expert] opinion was unworthy of belief or that the testimony of
[the other experts] was beyond dispute.
But the task of
evaluating their conflicting opinions lay in the first instance
with the ALJ in whose presence they testified.
When the ALJ's
determination in this case is given its ‘due weight,’ we see no
basis for overturning that determination.
In doing so, the
District Court did not heed the ‘due weight’ standard, and the
District Court's finding . . . was clearly erroneous.).
Here, affording the ALJ’s consideration of Plaintiff’s
expert testimony its due weight, the Court cannot find that the
ALJ erred in this regard.
b.
The ALJ improperly considered testimony
about programming that Defendant did not
actually propose for R.L., and the ALJ
improperly determined that Plaintiff denied
Defendant an opportunity to modify its proposed
educational plan for R.L.
Plaintiff contends that the ALJ must assess the IEP
actually proposed by Defendant, and not a hypothetical IEP that
Defendant could have proposed, and not an IEP that Defendant
could have modified.
With regard to the hypothetical IEP, Plaintiff argues that
the ALJ improperly relied upon testimony from Defendant that it
could have offered R.L. Orton Gillingham (“OG”) reading
instruction.
Plaintiff contends that OG reading instruction was
not included in R.L.’s IEP, R.L. was receiving Wilson reading
14
instruction at QSH, and Defendant’s IEP contained no specialized
reading program.
Plaintiff argues that the ALJ erred by not
discrediting Defendant’s testimony regarding how OG instruction
could be provided, since it was not included in the IEP.
The Court does not find that the ALJ erred on this issue.
The ALJ noted that the Cinnaminson School District used the OG
reading system and not the Wilson reading system.
1-3 t 6.)
(Docket No.
The ALJ also noted that a member of Defendant’s child
study team found limited distinction between the OG reading
system and the Wilson reading system for R.L.’s purposes.
at 8.)
(Id.
The ALJ concluded, “The absence of Wilson-certified
personnel in the district does not create a sufficient reason to
claim that FAPE is not provided by the Board.
Petitioner
submitted no evidence that the OG system could not benefit R.L.
Petitioner made no showing that the OG system failed to provide
educational benefit to R.L.”
(Id. at 13.)
Plaintiff contends that because neither the OG reading
system nor the Wilson reading system was included in the IEP,
the ALJ should not have considered whether Defendant could have
provided a specialized reading system.
Plaintiff, however,
presents no evidence that the IEP is deficient because it did
not indicate one particular program over another. 5
5
The record
Cf. W.D. v. Watchung Hills Regional High School Bd. of Educ.,
602 F. App’x 563, 568 (3d Cir. 2015) (“As noted in the Federal
15
evidence shows that R.L. was under the Wilson system at QSH
because that was the program used by QSH, and that if R.L.
attended a school in Cinnaminson, she would be under the OG
system because that was the program used by the Cinnaminson
school district.
The record evidence, as assessed by the ALJ,
did not show a difference between the two programs as applied to
R.L.
Defendant’s child study team member testified that the OG
system was not included in the IEP because after R.L. enrolled
in the district, an OG specialist would come and assess her to
determine if she required that service, and if so, how often.
(Docket No. 17-6 at 110.)
The child study team member also
confirmed that the absence of a reference to the OG system in
the IEP did not indicate that R.L. would not receive it.
(Id.)
“[I]n determining whether an IEP was appropriate, the focus
should be on the IEP actually offered and not on one that the
school board could have provided if it had been so inclined.”
Lascari v. Board of Educ. of Ramapo Indian Hills Regional High
School Dist., 560 A.2d 1180, 1189 (N.J. 1989).
The ALJ
determined that Defendant offered a reading program effectively
identical to the one R.L. was receiving at QSH, and that R.L.
Register, “nothing in [the IDEA] . . . requires an IEP to
include specific instructional methodologies. . . . The
Department[of Education]'s long-standing position on including
instructional methodologies in a child's IEP is that it is an
IEP Team's decision.” 71 Fed. Reg. 46,540, 46,665 (August 14,
2006).”).
16
would receive that reading program if the specialist determined
she required it.
The ALJ therefore did not, as Plaintiff
argues, consider a hypothetical IEP in the sense that Defendant
could have provided the OG reading system if it wanted to, but
did not.
Instead, Defendant offered an equivalent reading
system to students enrolled in the district who required it.
The ALJ did not err on this issue.
Next, with regard to Plaintiff’s argument that the ALJ
considered a hypothetical IEP by implying that Defendant could
modify R.L.’s IEPs after she was enrolled in the district, the
Court is unpersuaded.
Plaintiff contends that she and her
experts did not feel that Defendant’s IEP was appropriate for
R.L., and as a result she made the decision to continue R.L. at
QSH instead of enrolling in the Cinnaminson school district.
Based on her presumption that the IEP was inadequate from the
start, Plaintiff faults the ALJ for considering testimony about
how the IEP could be modified later depending on how R.L.
progressed under the proposed IEP, and argues that the ALJ’s
conclusion that Defendant’s IEP provided R.L. with a FAPE is
based on the hypothetically modified-to-suit IEP, and not the
one actually offered.
That the ALJ recognized R.L.’s IEPs may be changed in the
future depending on her evolving needs does not mean that the
ALJ failed to determine whether R.L.’s proposed IEP at that time
17
provided her with a FAPE.
See, e.g., S.H. v. State-Operated
School Dist. of City of Newark, 336 F.3d 260, 265 (3d Cir. 2003)
(citing 20 U.S.C. § 1414(d)(1)(A)(4)) (“The IEP team is required
to review the IEP at least annually to determine whether the
child is reaching the stated goals.
In addition, the IEP team
is to revise the IEP to address lack of progress, necessary
changes arising from reevaluation of the child, and parental
input, among other things.”); S.A. o/b/o G.A. v. Delanco
Township Board of Education, 2004 WL 2266849, at *8 (N.J. O.A.L.
2004) (“Petitioner must bear in mind that an IEP is a document
that continuously evolves as the child grows.”).
The ALJ
considered the record before him, an assessment this Court must
view as prima facie correct, and concluded that the IEPs
proposed by Defendant had the capacity to address R.L.’s
educational needs, and provide her with a meaningful educational
benefit. 6
Plaintiff has not met her burden to show that decision
was incorrect.
6
The ALJ found that Defendant provided R.L. with a FAPE in the
June 2015 IEP and the May 2016 IEP. (Docket No. 1-3 at 18.)
The ALJ found that Defendant attempted to provide R.L. with a
FAPE for the 2016 extended school year, but that Plaintiff
thwarted Defendant in that regard. (Id. at 19.) The ALJ’s
determination as to the 2016 extended school year is discussed
in the next section.
18
c.
The ALJ improperly held that a determination
about appropriateness can never be made unless a
student first tries the program.
As a corollary to the previous argument, Plaintiff further
contends that the ALJ erred when he found that R.L. must “try
out” Defendant’s proposed IEP before any alternative placement
could be considered.
Plaintiff argues there is no precedent to
support the ALJ’s try-it-out approach.
To support her argument,
Plaintiff cites to two passages in the ALJ’s decision:
“[I]t is
not possible to know whether a district can provide FAPE for a
student until it has had an opportunity to do so.”; and
“Determinations regarding whether meaningful educational benefit
can be achieved cannot be made without an educational experience
with the Cinnaminson [district].”
(Docket No. 1-3 at 12.)
The Court finds that the context of these sentences and the
ALJ’s factual and legal conclusions do not support Plaintiff’s
argument that the ALJ created an improper “try-it-out first”
rule in this case.
The full context of the ALJ’s observations
are set forth here:
In this case, petitioner argues that the Board did not
provide FAPE, as it was predisposed to provide an indistrict program, rather than an out-of-district program,
or that R.L.'s medical concerns make her ineligible to
attend an in-district school. Those arguments are not
accepted by this tribunal. The evidence suggests that it
is likely that after R.L. had a tumultuous time on
departing Orchard Friends School, and QSH appeared to work
for R.L., K.G. did not want to investigate other potential
educational settings. K.G.'s objections to a placement at
Cinnaminson clearly reflected genuine concern for R.L.'s
19
well-being. Her testimony was influenced by the best
educational interests of the child and a desire to avoid
change until necessary. However, it is not possible to
know whether a district can provide FAPE for a student
until it has had an opportunity to do so. There is no
question that a change of school may result in some degree
of tumult to R.L., but such changes are sometimes
necessitated by the circumstances.
(Id. at 12.)
[Tighe’s] report goes beyond her area of expertise, and
makes the conclusory opinion that the Board cannot provide
a meaningful educational benefit to R.L. Her testimony
does not dissuade this tribunal that the Board needs to be
afforded the opportunity to educate R.L. Determinations
regarding whether meaningful educational benefit can be
achieved cannot be made without an educational experience
with the Cinnaminson [district]. If after exposure to
R.L., modification of the anticipated programs for her
individual needs, and an analysis of meaningful educational
benefit to R.L. it is determined that the in-district
program is not appropriate, other steps may need to be
taken.
(Id.)
The ALJ’s comments clearly arose from his determination
that Plaintiff had failed to provide Defendant with a good faith
opportunity to comply with the IDEA, not that it lacked the
ability, will, or capacity to do so.
Rather, the ALJ found that
Defendant prepared a proposed IEP in advance of the child study
team meeting for the 2015-2016 school year, but Plaintiff did
not provide input at that meeting, and she failed to cooperate
with Defendant in working on an IEP for R.L.
(Id. at 14-15.)
The ALJ further found that Plaintiff prevented Defendant from
fully addressing R.L.’s needs or adjusting the IEP to meet her
20
needs by depriving it of the opportunity to demonstrate the
education available to R.L. at Cinnaminson.
Likewise, the ALJ
found that Plaintiff denied Defendant the ability to determine
if services for the 2016 extended school year were appropriate.
(Id. at 18-19.)
“Parents who believe that a public school is not providing
a FAPE may unilaterally remove their disabled child from that
school, place him or her in another school, and seek tuition
reimbursement for the cost of the alternate placement,” but
“[t]he IDEA was not intended to fund private school tuition for
the children of parents who have not first given the public
school a good faith opportunity to meet its obligations.”
Henlopen, 606 F.3d at 72. 7
Cape
Moreover, “[t]he core of the statute
. . . is the cooperative process that it establishes between
parents and schools.”
Schaffer ex rel. Schaffer v. Weast, 546
U.S. 49, 53 (2005); Lascari, 560 A.2d at 1180 (providing that
where a child has been unilaterally placed by his or her parents
7
In contrast to Plaintiff here who wished to retain R.L.’s
placement in a private school and rejected the public school
education, the impetus for the IDEA came from Congress’ concern
about the apparently widespread practice by school districts of
relegating disabled children to private institutions or
warehousing them in special classes. School Committee of Town
of Burlington, Mass. v. Department of Educ. of Mass., 471 U.S.
359, 373 (1985). One purpose of § 1415(e)(3) of the IDEA “was
to prevent school officials from removing a child from the
regular public school classroom over the parents’ objection
pending completion of the review proceedings.” Id.
21
in an educational setting contrary to the IEP, the parents may
be entitled to reimbursement, but only if the program proposed
in the IEP was inappropriate “and if the parents demonstrate
they have acted in good faith”); 20 U.S.C. § 1412(a)(10)(C)(ii).
Thus, “parents who unilaterally change their child's placement
during the pendency of review proceedings, without the consent
of state or local school officials, do so at their own financial
risk.”
Sch. Comm. of Town of Burlington, Mass. v. Dep't of
Educ. of Mass., 471 U.S. 359, 373–74 (1985).
Considering the ALJ’s findings as to Plaintiff’s lack of
participation in the 2015-2016 school year IEP process, and how
that thwarted Defendant’s efforts to prepare an IEP for R.L.
after the 2015-2016 school year, it is evident that the ALJ did
not implement a requirement that a student must enroll in a new
school district before any alternative placement may be
considered.
Instead, the ALJ observed that a student who moves
into a new district must permit that district to fulfill its
obligations under the IDEA to (1) identify a child who is
eligible for IDEA services, and once identified, (2) create and
implement an IEP based on the student’s needs and areas of
disability.
Munir, 723 F.3d at 426.
As the ALJ stated, when a
parent does not cooperate in the process, “it is not possible to
know whether a district can provide FAPE for a student until it
has had an opportunity to do so,” and “[d]eterminations
22
regarding whether meaningful educational benefit can be achieved
cannot be made without an educational experience with the
Cinnaminson [district].”
Indeed, the Third Circuit has directed
that parents are not entitled to an alternative placement for
their child if they have not “first given the public school a
good faith opportunity to meet its obligations.”
Cape Henlopen,
606 F.3d at 72 (citing Roland M. v. Concord Sch. Comm., 910 F.2d
983, 995 (1st Cir. 1990) (“The law ought not to abet parties who
block assembly of the required team and then, dissatisfied with
the ensuing IEP, attempt to jettison it because of problems
created by their own obstructionism.”)); see also L.G. v. Fair
Lawn Bd. of Educ., 2011 WL 2559547, at *5 (D.N.J. 2011) (“The
fact that the child study team ultimately disagreed with L.'s
parents does not mean that the parents were denied meaningful
participation.
If the standard for measuring meaningful
parental participation was that the parents always prevailed,
there would be no process at all.”).
Consequently, the Court finds that the ALJ did not impose a
requirement that a student must “try out” the public school
before an alternative placement could be considered, but rather
made the finding that Plaintiff’s lack of cooperation in the
process stymied Defendant’s efforts to fulfill its obligations
under the IDEA, which required Defendant to determine, in the
first instance, whether it could provide R.L. with a FAPE in23
district.
The Court will therefore not reverse the decision of
the ALJ on this basis.
CONCLUSION
For the foregoing reasons, the Court will affirm the
decision of the ALJ.
Defendant’s motion for summary judgment
will be granted, and Plaintiff’s motion for summary judgment
will be denied. 8
An appropriate Order will be entered.
Date: September 19, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
8
Because the Court has affirmed the ALJ’s decision, the Court
need not consider whether QSH is an appropriate alternative
placement. The Court also need not consider Defendant’s
argument that a placement at QSH would violate the Establishment
Clause because QSH is a religious institution. The Court notes,
however, that “reimbursement of funds here is to the parents,
not a religious school, and, in all events, the sectarian nature
of an appropriate school does not preclude reimbursement.”
Edison Township Board of Education v. F.S., 2017 WL 6627415, at
*7 (D.N.J. 2017) (citing L.M. v. Evesham Twp. Bd. of Educ., 256
F. Supp. 2d 290 (D.N.J. 2003) (ordering reimbursement of funds
for placement in religious school)); see also B.C. v. Wall Tp.
Bd. of Educ., 2013 WL 6498995, at *5 (D.N.J. 2013) (same).
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?