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BERNARDSVILLE BD. OF EDUC. v. J.H.

March 22, 1993

BERNARDSVILLE BOARD OF EDUCATION, Plaintiff,
v.
J.H., et al., Defendants.



The opinion of the court was delivered by: CLARKSON S. FISHER

 FISHER, District Judge

 Before the court are two motions. First is a motion brought by defendants, J.H. and E.H., individually and on behalf of their minor son, J.H., and J.H., individually, for summary judgment. Also before the court is a cross-motion brought by plaintiff, the Bernardsville Board of Education (BOE), for summary judgment. For the reasons set forth below, both defendants' and plaintiff's motions for summary judgment are denied.

 FACTS

 J.H. is an eighteen-year-old male. In first grade, he was referred to plaintiff's Child Study Team (CST) to be evaluated. In February and March of 1982, the CST completed a social history, educational assessment and psychological evaluation of J.H. In April of 1982, J.H. was classified as perceptionally impaired, and he was placed in a resource room for reading, math and language arts.

 For the 1987-1988 school year, when J.H. was in seventh grade, the CST, which periodically evaluated J.H., recommended that he be placed in a special education class. An Individualized Education Plan (IEP) was developed on February 17, 1987, with members of the CST and J.H.'s mother present.

 In September 1987, J.H.'s parents removed J.H. from the Bernardsville School System and placed him at the Landmark School in Massachusetts, a residential school for handicapped children. J.H. attended the Landmark School for the seventh grade (1987-88), eighth grade (1988-89) and ninth grade (1989-90), through May of 1990.

 On November 17, 1989, J.H.'s parents filed a new request for an administrative hearing. On November 29, 1989, J.H.'s representative agreed to a mediation conference in lieu of an immediate settlement conference. On December 8, 1989, the parties reached an agreement which kept the case from proceeding to the Office of Administrative Law (OAL).

 From December 1989 through April 1990, plaintiff's CST conducted a reevaluation of J.H. to develop an appropriate IEP. On or about May 7, 1990, J.H. left the Landmark School, and he finished the school year at the Bernardsville High School by use of the proposed IEP, which was implemented for the balance of the 1989-1990 school year.

 On September 4, 1990, J.H.'s father signed an authorization for the placement of J.H. which stated that he authorized the Bernardsville High School "as an interim placement pending agreement on an IEP, upon agreement by the BOE that such placement shall not thereby become the current educational placement within the meaning of federal or state statutes and regulations pertaining to special education." J.H. attended the Bernardsville High School for his tenth-grade education (1990-91), at which time the proposed IEP plan was implemented.

 On January 4, 1991, having been unable to settle the case, petitioners' counsel asked that the matter be turned into a request for due process. Specifically, petitioners alleged that J.H. had been deprived of a free, appropriate public education, in violation of the Individuals with Disabilities Education Act ("IDEA" or "Act"), 20 U.S.C. § 1400(c), formerly named the Education of the Handicapped Act ("EHA" or "Act"). Furthermore, petitioners requested reimbursement of the monies spent on J.H.'s attendance at the Landmark School from the summer of 1987 through May of 1990, as well as fees and costs, pursuant to 20 U.S.C. § 1415(e)(4).

 A hearing was conducted before an Administrative Law Judge (ALJ) of the New Jersey Office of Administrative Law, OAL Docket No. EDS 576-91, Agency Docket No. 90-3242. On June 24, 1992, the ALJ rendered a written opinion which found that respondent had failed to provide J.H. with a free, appropriate education and had failed to comply with the procedural requirements of N.J.A.C. 6:28-1.1, which thereby deprived J.H. of the opportunity to increase his ability to read. The ALJ concluded that petitioners were entitled to reimbursement for tuition expenses at the Landmark School for the school years 1987-88, 1988-89 and ...


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