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Fallon v. Board of Education of Scotch Plains-Fanwood School District

Decided: May 6, 1982.

THOMAS J. FALLON AND ANN FALLON, HIS WIFE, PLAINTIFFS,
v.
BOARD OF EDUCATION OF THE SCOTCH PLAINS-FANWOOD SCHOOL DISTRICT, UNION COUNTY, DEFENDANT



Feller, J.s.c. (retired and temporarily assigned on recall).

Feller

This is an action in lieu of prerogative writs wherein plaintiffs seek to recover interest on payments made for tuition and transportation for their daughter's education. There is no dispute as to any material fact.

Plaintiffs are the parents of Nadine Fallon (hereinafter Nadine) who was born on January 25, 1961. Nadine attended the public schools of defendant school district from September 1966 through February 1976.

On March 1, 1976 plaintiffs placed their daughter Nadine in the Jordan Day School in Carteret, New Jersey, a private day school for neurologically impaired children. The placement followed the refusal of defendant's child study team to change Nadine's classification from "multiply handicapped," with her primary handicap being educable mentally retarded, to "neurologically impaired," and defendant's insistence that Nadine attend its class for mentally retarded children wherein she had been placed by defendant since October 1973.

When plaintiffs' request for reimbursement of tuition and transportation expenses for Nadine's attendance at the Jordan Day School was rejected by defendant, a petition seeking reimbursement was submitted to the Commissioner of Education in April 1978. Submission of that petition was deferred until plaintiff Thomas J. Fallon had completed his term as a member of the defendant's board of education so as to avoid any question of conflict of interest.

A hearing pursuant to N.J.A.C. 6:28-1.9(j) was conducted on September 20, 25 and 28, and October 13, 1978, by classification officer Dr. Arthur Shapiro, which concluded that Nadine should be classified as neurologically impaired and placed in a class for neurologically impaired pupils. The opinion of Dr. Shapiro contained findings of fact which indicated numerous incidents of

procedural irregularity and lack of responsiveness to Nadine's special education needs on the part of defendant.

The classification then concluded:

Based solely on the evidence submitted and the testimony presented, the classification officer finds that N.F. should be classified as neurologically impaired and placed in a class for neurologically impaired pupils.

The classification officer agrees with petitioners' contention that N.F.'s placement at the day school was not voluntary on their part but forced by respondent's refusal to program N.F. as a neurologically impaired pupil coupled with enforcement of the state attendance laws (R-52).

The classification officer hereby orders that petitioners be reimbursed for N.F.'s attendance at the day school for the period from March 1976 to June 1978, the amount awarded to be based upon the amount of tuition allowed to the school for pupils classified as neurologically impaired. In addition, transportation costs to petitioners for the actual amount expended by them should be reimbursed by respondent for the same period of time. It is noted that respondent provided N.F.'s transportation for one year as an accommodation to petitioners.

Respondent is also hereby ordered to provide N.F. with an educational program geared to her needs as a pupil classified as neurologically impaired. Respondent's basic child study team is to meet with petitioners to prepare an individualized education program in accordance with the rules now in effect (N.J.A.C. 6:28-1.8). This program is to be developed within 60 days. N.F.'s placement is to be changed to respondent's class for neurologically impaired pupils in accordance with child study team recommendations, the results of the individualized education program meeting and this decision.

This decision shall be implemented without delay and be binding on all parties.

Subsequently defendant filed a notice of appeal from the decision of the classification officer. Defendant also made application for a stay of that decision which was essentially denied by Dr. Shapiro's decision of April 26, 1979. On appeal from the denial of defendant's motion, the Commissioner of Education stayed the payment of tuition and transportation costs incurred prior to January 5, 1979, the date of the ...


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