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REMIS v. NEW JERSEY DEPT. OF HUMAN SERVS.

February 24, 1993

JENNIFER REMIS, by way of her legal guardian, Theresa Trude, Plaintiff,
v.
NEW JERSEY DEPARTMENT OF HUMAN SERVICES, Defendant. NEW JERSEY DEPARTMENT OF HUMAN SERVICES, Plaintiff, v. JENNIFER REMIS, by way of her legal guardian, Theresa Trude, Defendant.



The opinion of the court was delivered by: STANLEY S. BROTMAN

 BACKGROUND

 The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485, creates a comprehensive scheme under which the federal government aids the states in meeting the special educational needs of disabled children. States receiving federal financial assistance under the IDEA are required to develop a plan that assures all disabled children the right to a "free appropriate public education." Id. § 1412(1). They are also required to establish elaborate procedural safeguards to ensure a large measure of parental involvement in the education of disabled children. Id. § 1412(5)(A). One such safeguard is that parents of a disabled child must be given an opportunity to assert complaints about "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child," Id. § 1415(b)(1)(E), and to have those complaints reviewed at an "impartial due process hearing" conducted by a state or local educational agency. Id. § 1415(b)(2). If the initial hearing is held at the local level, the state must provide for an appeal to the state educational agency. Id. § 1415(c). And "any party aggrieved by the findings and decision made [at the state administrative hearing has] the right to bring a civil action with respect to the complaint presented . . . in any State court of competent jurisdiction or in a district court of the United States." Id. § 1415(e)(2).

 Theresa Trude is the mother of Jennifer Remis, a twenty-year old autistic woman with severe behavioral problems. Because of her disabilities, Jennifer is entitled under the IDEA to special educational services from the State of New Jersey. Id. § 1412. Since 1990 the Division of Developmental Disabilities of the New Jersey Department of Human Services ("DDD") has had the responsibility for providing those services.

 Jennifer currently attends the Au Clair School in Bear, Delaware. In July 1992 Mrs. Trude asked the DDD to transfer Jennifer from Au Clair to the Bancroft School in Haddonfield, New Jersey, where Jennifer's family resides. The DDD refused. Consequently, Mrs. Trude initiated a due process hearing pursuant to section 1415(b)(2).

 The matter was assigned to Administrative Law Judge Robert W. Scott. Following the submission of cross-motions for summary judgement, Judge Scott ruled in favor of Mrs. Trude and ordered the DDD to place Jennifer at Bancroft on or before November 30, 1992. The DDD failed to comply. As a result, on December 9, 1992 Mrs. Trude filed a complaint in this Court seeking an order enforcing Judge Scott's decision and awarding her attorney fees and costs. The Court conducted a hearing on the matter on January 7, 1993. At the hearing, the DDD indicated that it intended to file a complaint in this Court under section 1415(e)(2) seeking a review of Judge Scott's decision. The DDD filed this complaint on January 14, 1993. Pursuant to Fed. R. Civ. P. 42(a), the Court consolidated the two actions. *fn1"

 DISCUSSION

 Standard of Review

 In reviewing a complaint filed pursuant to section 1415(e)(2), a district court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2). Although section 1415(e)(2) does not specifically set forth the standard of review a district court must apply, it seems clear that complete de novo review is inappropriate. G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 945 (1st Cir. 1991); Block v. District of Columbia, 748 F. Supp. 891, 894-95 (D.D.C. 1990). The Supreme Court has admonished the district courts to give "due weight" to the results of the state administrative proceedings. Board of Educ. v. Rowley, 458 U.S. 176, 206, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982). In addition, the party challenging the outcome of the administrative proceedings bears the burden of proof. Board of Educ. v. Illinois State Bd. of Educ., 938 F.2d 712, 716 (7th Cir. 1991), cert. denied, 112 S. Ct. 957 (1992); Barnett v. Fairfax County Sch. Bd., 927 F.2d 146, 152 (4th Cir.), cert. denied, 116 L. Ed. 2d 138, 112 S. Ct. 175 (1991). Thus, the Court can set aside Judge Scott's disposition of this matter only if, after giving due weight to his decision, it finds the DDD has proved by a preponderance of the evidence that his decision was erroneous. Block, 748 F. Supp. at 895.

 Analysis

 One sentence of the brief Mrs. Trude submitted to Judge Scott is devoted to informing him that the Au Clair School is not an approved special education placement. (R. of Admin. Pro'gs, Item 3, Pet'r's Br. Supp. Summ. J. at 1.) The DDD apparently did not disagree, for in the brief it filed in response, it concedes--not once, but thrice--that Au Clair is unapproved. (R. of Admin. Pro'gs, Item 4, Resp't's Br. Supp. Summ. J. at 5, 6, 8.) But contrary to its earlier concessions, the DDD now devotes approximately eleven pages of its brief to the argument that, in fact, Au Clair is not unapproved. Rather, argues the DDD, Au Clair retains a conditional approval with respect to prospective students and an unconditional approval with respect to students placed there before September 2, 1987. *fn2" (DDD's Br. at 2-4, 13-20.)

 Although in his opinion of November 20, 1992, Judge Scott notes the DDD's concession that Au Clair is unapproved, (R. of Admin. Pro'gs, Item 6, Op. of Scott, J. at 3), it is unclear what significance, if any, he attributed to that fact in rendering his decision. In any event, the Court need not address the question; even assuming arguendo that Au Clair is approved, the DDD has failed to meet its burden of proving that Judge Scott's decision was wrong.

 
With respect to placing a handicapped child in an alternate setting, the analysis states that among the factors to be considered in placing a child is the need to place the child as close to home as possible. [State agencies] are required to take this factor into account in making placement decisions. The parent's right to challenge the placement of their child extends not only to placement in special classes or separate schools, but also to placement in a distant school, particularly in a residential program. An equally appropriate ...

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