M.G. v. NORTH HUNTERDON/VOORHEES REGIONAL HIGH BOARD OF EDUCATION

Filing 24

MEMORANDUM AND ORDER that Plaintiff's 12 Motion for Summary Judgment is denied. Defendant's 13 Motion for Summary Judgment is granted. The Clerk is directed to close the file. Signed by Judge Peter G. Sheridan on 10/2/2018. (mps)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

M.G. and D.G. on behalf of M.G.,

Civil Action No.: 17-cv-12018 (PGS)(LHG)

Plaintiff

MEMORANDUM
AND ORDER

V.

NORTH HUTERDON-VOORHEES
REGIONAL HIGH SCHOOL DISTRICT
BOARD OF EDUCATION
Defendant.

SHERIDAN, U.S.D.J.
This matter is before this Court on two cross-motions for summary judgment (ECF No. 12
and 13). At oral argument both parties agreed that the matter may be resolved on these motions
rather than conducting another hearing. The Court has subject matter jurisdiction pursuant to the
Individuals with Disabilities Act (IDEA), 20 U.S.C.A.

§

1400, et seq.

I.
As a preliminary matter, this is an appeal from a final order entered on October 13, 2017
by Administrative Law Judge Barry E. Moscowitz (“AU”). On November 22, 2017, Plaintiff
filed a Complaint challenging the AU’s decision because it “would result in unlawful
discrimination against M.G.’ and Plaintiffs on the basis of M.G.’s disabilities in violation of
Section 504 and the IDEA. (Compl. “Compi.” ECF No. 1, 30).

One of the parents and the child have the same initials, “M.G.”. In this memorandum, M.G. refers to the
child.

Plaintiff M.G. is presently an eighteen-year-old student (date of birth March 5, 2000), but
at the time of decision, M.G. was a minor. M.G. has been diagnosed with Autism Spectrum
Disorder and other related disabilities. (Complaint, ECF No. 1, 4). For more than ten years, M.G.
attended the Developmental Learning Center (“Learning Center”) in Warren, New Jersey.
Defendant, The North Hunterdon Voorhees Regional School District (“District”), is a
regional educational agency of several municipalities and is subject to the regulations of the State
of New Jersey, Department of Education, for the provision of educational services to children
residing within the confines of its district, including children with special needs. The District is a
recipient of federal funding for educational services it provides in accordance with IDEA and laws
and regulations of New Jersey. See, e.g. N.JA.C. 6A:14-l.l et seq.
The District has identified M.G. as a child eligible for special education under IDEA as a
student with autism. See 34 C.F.R. §300.7(c). When M.G. began attending the Learning Center in
elementary school, a program for autistic students was not available within the District.
The Learning Center is approximately twenty-five miles from M.G.’s home in Pittstown,
New Jersey. During her first year of high school, M.G. continued to attend the Learning Center;
however, for her second year (2016-2017), the District initiated a specialized program at its
Voorhees High School in Glen Gardner, New Jersey for students with autism. (Def. Br. pg. 2).
According to the District, the specialized program offered the same instruction, support and
services as provided at the Learning Center, and Voorhees High School is substantially closer to
M.G.’s home. (Def. Br. p. 2). According to Defendant, throughout the three years of dispute, M.G.
has attended the Learning Center at the District’s expense, pursuant to the “stay put” provision of
the IDEA. 20 U.S.C. §14150. (Def. Br. p. 3).

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On February 26, 2016, the District proposed removing M.G. from the Learning Center to
its specialized program at Voorhees High School as set forth within an Individualized Educational
Program (“IEP”). (Compl. 12; Def. SOF 5). Plaintiff declined the IEP on March 8, 2016, and filed
a due process petition (“Petition No. 1”). (Def. SOF ¶6).
On April 28, 2017, the child study team at Voorhees High School offered M.G. a revised
IEP which included placement in the autism program at Voorhees High School. (Id. ¶8). The
revised IEP had many educational component including: (1) placement in a self-contained
classroom at Voorhees High School, (2) a career development component of 495 minutes per week
in the community, (3) group occupational therapy two times per week for thirty minutes, (4) group
parent counseling and/or training services for 120 minutes weekly, (5) individual speech language
therapy four times per week for thirty minutes, (6) group speech language therapy two times per
week for thirty minutes each, (7) round trip transportation services between her home and school,
(8) extended school year services, (9) a behavioral plan, (10) a transition plan from the Learning
Center to the District, and (11) an ABA consultation and one-to-one aide. (Def. SOF 9). Plaintiff
refused the IEP and filed a due process petition on June 14, 2017 (Petition 2). (Id. ¶14).
Petition 1 and Petition 2 were pending before the New Jersey Office of Administrative
Law. AU Moscowitz consolidated both petitions and conducted a three-day hearing2. Since M.G.
remained a student at the Learning Center when Petition 1 was pending, that proposed IEP was no
longer an issue at the time of the hearing. As such, the AU only reviewed the IEP subject to
Petition 2.

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According to Defendant, on January 24, 2018, the IEP team conducted another annual review and again
offered M.G. a placement in its specialized program for students with autism at Voorhees High School. On February
9, 2018, Plaintiffs filed their third Petition for Due Process (Petition #3), again challenging the proposed in-district
placement and seeking an order that the appropriate placement for M.G. is the Learning Center. Petition #3 is pending
before the OAL.

3

The hearing before AU Moscowitz was a battle of the experts. The District included the
testimony of Jessica Allora, the school psychologist, Andrea Quinn, clinical psychologist and
behavior specialist associated with Rutgers University, and Mary Pat Publicover, Director of
Special Education for the District. Plaintiff presented the testimony of D.G., father of M.G., and
Michelle Miller, clinical psychologist and assistant professor at the Child Study Center of New
York University.
On October 13, 2017, AU Moscowitz issued his Final Decision (ECF No. 13-5) in which
he analyzed the testimony and written reports of the experts as well as M.G.’s father’s testimony.
Although M.G. has a long history of “self-injurious behaviors, eluding and other problematic
behaviors, she has made meaningful progress at DLC over the years and the parents believe she
should remain at DLC” (Final Decision, p. 2). Despite the Plaintiffs contention, AU Moscowitz
found that “no genuine difference exists between the program petitioners recommend for M.G.
and the program respondent offered for M.G.” as set forth in Petition 2 (Final Decision, p. 24).
He wrote:
On this score the record is clear. First, I found that no genuine
difference exists between the program petitioners recommend for
M.G. and the program respondent offered for M.G. in the IEP
dated April 28, 2017. Second, I found that the IEP dated April 28,
2017, includes the development of socialization skills,
communication skills, life skills, and vocational skills, which the
appropriate behavioral supports and a focus on the communication
skills, and vocational skills in particular, which both parties agree
M.G. needs, and that no competent evidence exists that M.G. will
regress if she is placed in the in-district program. (Final Decision,
p. 29).
Further, the AU asserted that D.G. and the Plaintiffs expert (Miller) were arguing for the
optimal placement for M.G. at the Learning Center when the law requires the District to provide
an appropriate placement.

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The AU’s finding was based on substantive reports and expert testimony, and he
discredited the testimony and report of Plaintiff’s witnesses.

For example, Michelle Miller

testified that the substantive content of the Petition 2 IEP was about the same as the Learning
Center program; but the Petition 2 IEP was inappropriate because the students in the district
program were higher functioning than M.G. Miller testified that the math and reading components
would be challenging for M.G. The AU discredited that testimony by noting that Miller conceded
that her assessment that the District students were higher functioning than M.G. was based on a
one-time observation; and she did not know the level of functioning of each student she observed
(Final Decision, p. 21).
Furthermore, the AU

discredited M.G.’s father’s testimony. The AU found that the

testimony was “not anchored on any competent evidence beyond personal experience to which he
“gave little weight” when determining the appropriateness of an IEP. (Final Decision, p. 20).
Additionally, the AU referred to D.G.’s testimony as “sarcastic and other times sardonic”,
emotionally charged and that he was “unsparing in his criticism” of the District (Final Decision,
p. 18, 19). The AU commented that the thrust of D.G.’s testimony focused on the child’s safety,
and his fear that M.G. might elope if placed in the District program.
III.
The standard of review applied in an appeal of an administrative decision under the IDEA
differs from the ordinary summary judgment standard. See MA. v. Voorhees Twp. Bd. Of Educ.,
202 F. Supp. 2d 345, 359 (D.N.J. 2002), affd, 65 Fed. Appx. 404 (3d Cir. 2003). In the Third
Circuit, a district court applies a standard known as modified de novo review. See S.H v. State
Operated Sch. Dist., 336 F.3d 260, 270 (3d Cir. 2003). Under this standard, the district court must
give “due weight” and “deference” to the findings in the administrative proceedings. D.S. v.
Bayonne Rd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010); Shore Reg’l High Sch. Bd. of Educ. v.
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P.S., 381 F.3d 194, 199-200 (3d Cir. 2004). Factual findings are considered prima facie correct,
and if the reviewing court does not adhere to them, it must explain why. Bayonne Bd. of Educ.,
602 F.3d at 564. When an AU has heard live testimony and made credibility determinations, his
findings are given “special weight,” and the Court must accept them unless extrinsic evidence in
the record justifies a contrary conclusion. Id. at 564. “Specifically, this means that a District Court
must accept the state agency’s credibility determinations ‘unless the non-testimonial, extrinsic
evidence in the record would justify a contrary conclusion.” Shore Reg’l High Sch. Bd. Of Ed.,
381 F. 3d at 199.
The AU’s legal determinations are reviewed de novo. Muller v. Comm. on Special Educ.,
145 F.3d 95, 102 (2d Cir. 1998); F.D. v. Holland Twp. Bd. ofEduc., Civ. No. 05-5237, 2007 U.S.
Dist. LEXIS 49293, 2007 WL 2021782, *4 (D.N.J. July 9, 2007); P.N. v. Greco, 282 F. Supp. 2d
221, 235 (D.N.J. 2003). Applying these standards, the district court may make findings “based on
the preponderance of the evidence and grant the relief it deems appropriate, including an award of
attorney’s fees, a requirement for reimbursement for a private educational placement, and a
direction for the provision of a compensatory education.” Bayonne Bd. of Educ., 602 F.3d at 564
(citations omitted).
The party challenging an administrative decision bears the burden of persuasion and “faces
the additional hurdle of overcoming a presumption that the Hearing Officer’s findings were
correct.” Andrew M v. Delaware Cnty. Office of Mental Health & Mental Retardation, 490 F.3d
337, 345 (3d Cir. 2007); Hawkins v. Dist. of Columbia, 539 F. Supp. 2d 108, 112 (D.D.C. 2008)
(citing Reid v. Dist. of Columbia, 401 F.3d 516, 521, 365 U.S. App. D.C. 234 (D.C. Cir. 2005));
Bd. ofEduc. ofMontgomery Cnty. v. Hunter, 84 F. Supp. 2d 702, 705 (D. Md. 2000) (citing Barnett
v. Fairfax Cnly. Sch. Bd., 927 F.2d 146, 152 (4th Cir. 1991), cert. den’d, 502 U.S. 859, 112 5. Ct.

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175, 116 L. Ed. 2d 138 (1991)). Moorestown Twp. Rd. of Educ. v. S.D., 811 F. Supp. 2d 1057,
1064 (D.N.J. 2011).
Although the parties have agreed that the Court may decide whether the Petition 2 IEP is
appropriate on the papers, since this matter is before the Court on motions for summary judgment,
the principles of summary judgment also apply. Summary judgment is appropriate under Fed. R.
Civ. p. 56(c) when the moving party demonstrates that there is no genuine issue of material fact
and the evidence establishes the moving party’s entitlement to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury
could return a verdict for the non movant, and it is material if, under the substantive law, it would
affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s
evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino

V.

Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130-3 1 (3d Cir. 1995). “[Ulnsupported allegations

...

and pleadings

are insufficient to repel summary judgment.” Schoch V. First Fidelity Bancorp., 912 F.2d 654, 657
(3d Cir. 1990); see also Fed. R. Civ. P. 5 6(e) (requiring nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial”). See, Alevras v. Tacopina, 226 Fed. App’x.
222, 227 (3d Cir. 2007).
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Iv.
Plaintiff requests that the Court reverse the AU’s findings of fact as to D.G.’s testimony,
and reverse the AU’s conclusion of law that the Petition 2 IEP is appropriate. This is a difficult
hurdle. As noted above, the standard applied to the challenge of an AU’s decision is modified de
novo review. The Court must give deference to the AU’s findings of fact, and his legal
determinations are reviewed de novo.
In looking at the findings of fact, the AU’s use of the word “sardonic” in describing
D.G.’s testimony may have been a stretch. Most judges understand the parent’s stress in a
situation such as this, and would assess the parent’s credibility in light of such stress. However,
D.G. alerted AU Moscowitz to the elopement issue, and the AU analyzed it in the Final
Decision. The AU found that Ms. Allora testified that elopement was not a major issue with the
District’s child student team because there was only one past incident, and M.G. would be
assigned a one-to-one aid to assure elopement would be prevented. (Final Decision, p. 11-12).
As such, the AU also found that there were “no instances of elopement or self-injurious
behavior in the last year.” (Final Decision, p. 24).
Plaintiff argues that the District failed to establish that the proposed program could
adequately provide for M.G.’s safety citing to an incident that was not discussed within the
AU’s final decision. D.G. testified that during their first visit to the District program, M.G.
sneaked away from the group, walked past people in the halls, exited the school building, and
proceeded across the parking lot. D.G. was the first one to notice that M.G. was missing, and her
mother tracked her down before any harm occurred. (Transcript of Testimony 8/16/17, pp. 7374). D.G. testified that M.G. had no such incidents at the Learning Center in the past.
Certainly, this was a peculiar event where both the parents and school officials were present and
despite same, M.G. still eloped; but it is unlikely that this would occur when the Petition 2 IEP is
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in place because M.G. will be escorted with a one-on-one aide at all times. Given that AU
Moscowitz carefully considered the elopement issue, the Court defers to such findings of fact.
Plaintiff further contends that the AU’s findings are incorrect because M.G.’s parents
should have had more input at the IEP meetings. Plaintiffs argue that the parents should be
afforded a greater opportunity to participate as members of the IEP team. Undoubtedly, the
IDEA’ s goal is for the child study team to communicate with and consider the views of the
parents as part of the decision making process. (P1. Br. P. 11). For example, one regulation (34
C.F.R. 3 30.322) states that a school district should “take steps to ensure.

.

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parents.

.

.

are

present at each IEP team meeting or are afforded the opportunity to participate” through
reasonable notification. 34 C.F.R. 300.222. Given this regulation, Plaintiffs have not shown any
evidence that the District has failed to provide such notice, or that the parents were not notified
by the IEP team concerning M.G.’s placement.
Finally, Plaintiffs argue that the AU erred in finding that no genuine difference exists
between the Learning Center program and the District’s program. (Final Decision, p. 23). Plaintiff
argues that although the goals of the programs are the same, the instructional methodology are
very different. (P1. Br. at pg. 17). For example, the District program would have M.G. spend half
of her day in English, math, and science classes with higher functioning students. In contrast, the
Learning Center program does not have academic classes, rather the Learning Center works on
“functional and pragmatic life skills in programming that varies throughout the day.” (P1. Br. pg.
19).

The AU addressed this issue at length. First, he discredited Miller’s testimony that she

observed higher functioning students in the District’s program when she visited it because she
conceded that she did not know the academic scores of the alleged higher functioning students.
Further, it was Ms. Publicover’s testimony that M.G. is one of the higher functioning students at
the Learning Center. Due to M.G.’s higher potential, Ms. Publicover believed that M.G. would
9

benefit by attending the District’s program. (Final Decision, p. 18). Next, the AU noted that Ms.
Allora testified that M.G. had an inability to interact with higher functioning students at the
Learning Center, and that interaction between M.G. and higher functioning students in the District
program would be a significant beneficial factor. (Final Decision, p. 6,7). Last, Ms. Quinn (who
disagreed with Ms. Miller’s assessment) testified that the instructors in the District program have
the tools to differentiate the teaching and instruction if an issue arises with higher functioning
students. (Final Decision, p. 13).

In light of the above, Plaintiff has not met their burden of

overcoming the presumption that the AU’s findings were correct. Andrew M, 490 F.3d 337, 345
(3d Cir. 2007).
In conclusion, the AU made extensive findings of fact in his decision that were based on
a review of the April 28, 2017 IEP, multidisciplinary evaluations, as well as testimony of the
parties’ expert witnesses elicited at the three day hearing. Ultimately, the AU found that the IEP
offered by the District “is reasonably calculated to provide M.G. with significant learning and
meaningful educational benefits in light of M.G.’s individual needs and potential, that is, it is
appropriately ambitious in light of those circumstances, and that it does so in the least restrictive
environment, warranting a return to the district where M.G. will have exposure to higher
functioning peers.”
Applying the modified de novo review, the Court finds Plaintiff has not overcome the
due weight and deference the Court yields to the findings of AU Moscowitz. His conclusions
are consistent with the goals and purposes of IDEA.

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ORDER
This matter, having been brought before the Court by Plaintiff’s motion for summary
judgment (ECF No. 12) and Defendant’s motion for summary judgment. (ECF No. 13), and the
Court having considered the briefs and submissions of the parties, and having heard oral argument;
and for good cause shown, and for all of the foregoing reasons,
IT IS on this October 2, 2018,
ORDERED that Plaintiff’s motion for summary judgment (ECF No. 12) is denied;
ORDERED that Defendant’s motion for summary judgment (ECF No. 13) is granted.
The Clerk is directedly to close the file.

M1cL
PETER G. SHERIDAN, U.S.D.J.

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