On certification to the Superior Court, Appellate Division.
For affirmance and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.
[116 NJ Page 32] In May 1981 Anthony and Geraldine Lascari went to the Ramapo-Indian Hills Regional High School (Ramapo) to discuss why their son, John, could not read and what could be done
about it. Eight years later they are still waiting for an answer. After conferences with school officials, an administrative hearing in the Department of Education, two trials in the Law Division, and three appeals in the Appellate Division, John's right to an education remains unresolved. In the interim, John has attained his majority and completed his education.
Our purpose in this opinion is to bring this matter to a close and to provide sufficient guidance so that in the future parents, children, and school boards can decide more equitably and efficiently the rights of handicapped children to a public school education. Toward that end, we conclude that the school district has the burden of proving that it is providing an appropriate education to the child. We conclude further that the district did not satisfy that burden in this case, and that Mr. and Mrs. Lascari are entitled from the Board of Education of Ramapo-Indian Hills Regional High School District (the board or the district) to reimbursement for John's tuition, but not for his room and board, at a residential school.
An explanation of the underlying statutory and regulatory scheme will aid comprehension of the relevant facts. Hence, we begin with a summary of state and federal regulations. A handicapped child is entitled to a panoply of rights conferred under the Education For All Handicapped Children Act of 1975 (EAHCA), P.L. 94-142, 89 Stat. 773, codified at 20 U.S.C. §§ 1401-61. Although education is primarily a concern of state and local governments, the education of handicapped children is regulated by a complex scheme of federal and state statutes and administrative regulations. Through the EAHCA, Congress has provided for cooperating states to receive federal funds to educate handicapped children. Receipt of the funds is conditioned on the State's compliance with EAHCA's goals and requirements. Thus, the education of handicapped children is an exercise in cooperative federalism.
New Jersey has elected to participate in the federal program to help finance the education of handicapped children. That participation is reflected in state statutes, N.J.S.A. 18A:46-1 to -46, and regulations, N.J.A.C. 6:28-1 to -11. See D.S. v. East Brunswick Township Bd. of Educ., 188 N.J. Super. 592, 598 (App.Div.), certif. denied, 94 N.J. 529 (1983). Following adoption of EAHCA in 1975, the Department of Education amended the relevant regulations in 1978, 1984, and most recently on May 15, 1989. Because this opinion spans the periods when each of the regulations was in effect, we will cite, where appropriate, to the current regulations as well as to the earlier versions.
To receive federal funds, a State must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free, appropriate education." 20 U.S.C. § 1412(1). The EAHCA mandates that the education be tailored to the unique needs of each handicapped child through an "individualized education program" (IEP), which must be reviewed annually. 20 U.S.C. § 1414(a)(5). The IEP is a written statement outlining the education placement and goals for the child. It is developed by a representative of the school board, the teacher, the child's parents, and, whenever appropriate, the child. 20 U.S.C. § 1401(19). The IEP should include
(A) a statement of the present levels of educational performance of the child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. [ Ibid. ]
Consistent with the federal requirements, State regulations provide that school districts are required to take the lead and to develop an appropriate IEP. N.J.S.A. 18A:46-8; N.J.A.C. 6:28-3.6(a) (1989, 1984); N.J.A.C. 6:28-1.8 (1978). The State regulations detail more fully the educational goals and objectives to
be included in the IEP and the action needed to meet them. N.J.A.C. 6:28-3.6 (1989, 1984); N.J.A.C. 6:28-1.8 (1978). Each district must provide educational programs and related services in accordance with its IEPs. N.J.A.C. 6:28-4.1 (1989, 1984); N.J.A.C. 6:28-2.1 (1978).
The State regulatory scheme provides for the initial evaluation and classification of a child by a "child-study team," which consists of a school psychologist, a learning disabilities teacher-consultant, and a school social worker. N.J.A.C. 6:28-3.1(b) (1989, 1984); N.J.A.C. 6:28-1.3 (1978). The child-study team determines whether a child is eligible for special education; it also develops, monitors, and evaluates the child's IEP. N.J.A.C. 6:28-3.1(a) (1989, 1984); N.J.A.C. 6:28-1.4 (1978); N.J.A.C. 6:28-1.8 (1978). Parents have the right to be involved in the formation of the IEP, 20 U.S.C. § 1401(19); 34 C.F.R. § 300.345; N.J.A.C. 6:28-2.3(e) (1989); N.J.A.C. 6:28-2.3(c) (1984); N.J.A.C. 6:28-1.8(g) (1978), and the team must meet with the parents of the handicapped child in developing the IEP, N.J.A.C. 6:28-3.6(c) (1989, 1984); N.J.A.C. 6:28-1.8 (1978).
Before the enactment of EAHCA, some school districts excluded handicapped children from public schools. Burlington School Comm. v. Massachusetts Dep't of Educ., 471 U.S. 359, 373, 105 S. Ct. 1996, 2004, 85 L. Ed. 2d 385, 397 (1985); Mills v. Board of Educ. of Dist. of Columbia, 348 F. Supp. 866, 868 (D.D.C.1972). A majority of handicapped children in the United States "'were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to "drop out."'" Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 102 S. Ct. 3034, 3037, 73 L. Ed. 2d 690, 695 (1982) (citing H.R.Rep. No. 94-332, 94 Cong., 1st Sess. 2 (1975)). In effect, handicapped children were being "warehoused." See Burlington, supra, 471 U.S. at 373, 105 S. Ct. at 2004, 85 L. Ed. 2d at 397; S.Rep. No. 94-168, 94th Cong., 2d Sess. 5-6, reprinted in 1975 U.S.Code Cong. & Admin.News (89 Stat.) 1425, 1429-30.
To remedy this problem, the EAHCA requires that "to the maximum extent appropriate, handicapped children * * * [should be] educated with children who are not handicapped * * *." 20 U.S.C. § 1412(5)(B). That precept is also manifested in federal and State regulations requiring that handicapped students be educated in the "least restrictive environment." 34 C.F.R. § 300.550; N.J.A.C. 6:28-2.10 (1989); N.J.A.C. 6:28-1.3, 3.6(e)5, 4.1(i)2 (1984); N.J.A.C. 6:28-2.2(b) (1978). Consistent with that requirement, State regulations require that handicapped children be educated in their local schools with non-handicapped children. N.J.A.C. 6:28-2.10(a) (1989); N.J.A.C. 6:28-3.6(e)5, 4.1(i)2 (1984); N.J.A.C. 6:28-2.2(b) (1978). Although the regulatory scheme manifests a clear preference for educating handicapped children "as close to home as possible," N.J.A.C. 6:28-2.10(a)(3) (1989); see also N.J.A.C. 6:28-3.6(e)5ii(1) (1984) (placement shall be "as close as possible to the pupil's home"); N.J.A.C. 6:28-2.2(b)1 (1978) (pupil should be placed in a setting "as close to his/her home as possible"), it also recognizes that for some children residential placement in a boarding school may be the only way for them to receive an appropriate education. Thus, EAHCA and state regulations contemplate the possibility that a school board may be obliged to pay for a handicapped child's education at a boarding school. See 20 U.S.C. § 1401(16); 34 C.F.R. § 300.302, .551; N.J.A.C. 6:28-4.2(a) (1989, 1984); N.J.A.C. 6:28-2.2(c)7 (1978).
Through EAHCA, Congress sought to ensure that school districts would be held accountable for the proper education of handicapped children, a task the districts had previously ignored. See S.Rep. No. 94-168, 94th Cong., 2d Sess. 25-27, reprinted in 1975 U.S.Code Cong. & Admin.News (89 Stat.) 1449-50; Rowley, supra, 458 U.S. at 179, 102 S. Ct. at 3037, 73 L. Ed. 2d at 695. Thus, a participating state must establish procedural safeguards for handicapped children and their parents. 20 U.S.C. 1415(a)-(e). The minimum procedures mandated by the EAHCA include parental access to relevant school records, notice to parents of any proposed change in a child's
educational placement, and the right to present complaints relating to the child's placement or provision of free, appropriate education. 20 U.S.C. § 1415(b)(1). When a dispute arises between the board and the parents, either party has the right to resolve the matter through an administrative proceeding known as an "impartial due process hearing." 20 U.S.C. § 1415(b)(2). Under the New Jersey regulations, when parents of a handicapped child are dissatisfied with his or her education, they have the right to request a mediation conference, N.J.A.C. 6:28-2.6 (1989, 1984); N.J.A.C. 6:28-1.9(h) (1978), or to request the due-process hearing, N.J.A.C. 6:28-2.7 (1989, 1984); N.J.A.C. 6:28-1.9 (1978).
A party aggrieved by the due process hearing may bring a civil action in state or federal court. 20 U.S.C. § 1415(e)(2). The court conducts an independent review of the case, but should give "due weight" to the findings of the administrative agency. Rowley, supra, 458 U.S. at 206, 102 S. Ct. at 3053, 73 L. Ed. 2d at 712. Against that legal background, we turn to the facts of this case.
John attended kindergarten through eighth grade in the Franklin Lake School District. In the second grade, he was classified as "neurologically impaired," and in the seventh and eighth grades he was placed in a class for the "perceptually impaired." He was graduated from grade school in June 1980.
In anticipation of his enrollment at Ramapo, John was evaluated by a child-study team consisting of a learning-disability specialist, a social worker, and a psychologist. He was also examined by a pediatric neurologist. These examinations revealed that John suffered from "a neurologic dysfunction in the form of a marked dyslexia [with] associated difficulties in auditory perceptual skills," and from "low self-esteem." Although tests revealed his I.Q. was 126, John read at second-grade
level and felt "segregated" from other students because he had been placed in the perceptually-impaired program.
After discussing the matter with Mr. and Mrs. Lascari, Ramapo designed an IEP, which had five goals: (1) to continue a phonetic-linguistic reading program to strengthen skills; (2) to develop math skills to include all areas necessary for practical math; (3) to develop a language arts program; (4) to build self-esteem and self-worth; and (5) to develop vocational skills.
Pursuant to the IEP, in September 1980 John entered Ramapo's program for the perceptually impaired. A special education teacher taught him reading, mathematics, and language arts. His shop and physical-education classes were with non-handicapped children.
Towards the end of the school year, on May 12, 1981, Mr. and Mrs. Lascari met with Ramapo officials to review John's IEP for 1981-82. As a result of that meeting, Ramapo agreed to provide John with a more intensive reading and writing program, to eliminate a vocational training program, and to "integrate" John as much as possible with the other students. Because of their continuing concern that John was not receiving sufficient academic instruction, the Lascaris refused to agree to the proposed IEP for 1981-82. Through an attorney, Mr. and Mrs. Lascari requested a review of his 1981-82 IEP. Underlying the request was their concern that John still read at a second-grade level and that he had not received proper training to overcome his dyslexia.
Tests conducted in January, May, and June 1981 revealed that John's progress in the 1980-81 school year was insignificant. Essentially, the tests showed that he still read at a second-grade level and that his mathematics skills were at a fourth-grade level.
At a meeting on August 18, 1981, the Lascaris told Ramapo's Director of Special Services that they were contemplating enrolling John at the Landmark School, a private school in Massachusetts that ...