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SCHREIBER v. RIDGEWOOD BD. OF EDUC.

January 31, 1997

Jeffrey Schreiber and Susan Schreiber, Plaintiffs,
v.
Ridgewood Board of Education, Defendant.



The opinion of the court was delivered by: POLITAN

 Dear Litigants:

 This matter is presently before the Court on the Complaint of plaintiffs Jeffrey Schreiber and Susan Schreiber, parents of minor child R.S., appealing the decision of an Administrative Law Judge pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. ยง 1401 et seq. A final hearing was held on December 4, 1996. For the reasons stated herein, the decision of the Administrative Law Judge is AFFIRMED.

 FINDINGS OF FACT

 R.S. is an emotionally disabled child whose disability and educational plan are the disputed subjects of this controversy. R.S. first started exhibiting emotional problems in first grade. Accordingly, in April of 1988 the Ridgewood Child Study Team (hereinafter "the Study Team") recommended that she be evaluated. Plaintiffs refused such evaluation until over three years later.

 In January and September of 1991, R.S. was privately evaluated by Mary MacCracken and Dr. Arnold Gold, respectively. Both evaluators found R.S. to be learning disabled; however, neither diagnosed R.S. as autistic. Thereafter, in October of 1991, plaintiffs permitted the Study Team to evaluate R.S.

 After the Study Team examined R.S. in December of 1991, she was classified as neurologically impaired ("N.I."). Consequently, during elementary school, R.S. was placed in mainstream classes with supplemental instruction. Thereafter, in sixth and seventh grade, R.S. was educated in Benjamin Franklin Middle School in Ridgewood. In June of 1994, R.S. was reevaluated at the Study Team's request. The Study Team concluded that R.S. was appropriately classified as N.I.

 Subsequently, at the Individual Education Plan ("IEP") meeting for R.S.'s 1994-95 school year, plaintiffs requested that R.S. be placed in a residential program. Defendant Board of Education, however, recommended a private day program, in particular the Bergen County Special Services Alternative Middle School, Garfield program (hereinafter "the Garfield School"). While the parties attempted to agree on a placement, R.S. was placed on home instruction in October of 1994. The next month, plaintiffs requested a due process hearing. In the interim, R.S. was enrolled in the Garfield School, where she is currently being educated.

 The parties reached a settlement whereby R.S. was to be reevaluated. Pursuant to the agreement, R.S. was evaluated by Dr. Fellman and Dr. William Chambers. Dr. Fellman diagnosed R.S. as N.I., while Dr. Chambers classified R.S as suffering from infantile autism. In view of the evaluations, on April 21, 1995, the Study Team recommended that R.S. continue to be classified as N.I. and remain in the Garfield School.

 Disagreeing with the classification of R.S. and placement at the Garfield School, plaintiffs instituted a due process petition. An administrative hearing was held before Administrative Law Judge Diana C. Sukovich ("ALJ"). Two weeks of testimony was received between June 28, 1995, and April 25, 1996. On August 13, 1996, the ALJ issued an opinion, holding that R.S. is appropriately classified as N.I. and that residential placement is not the least restrictive environment which will confer an educational benefit upon her.

 Consequently, plaintiffs filed the instant Complaint on September 6, 1996, appealing the ALJ's decision. Defendant filed an Answer on October 18, 1996. Thereafter, on November 8, 1996, plaintiffs sought a preliminary injunction placing R.S. in a residential program pending the outcome of this action. Oral argument was heard on November 18, 1996, and the Court denied plaintiffs' application for a preliminary injunction. The Court expedited plaintiffs' Complaint and scheduled a plenary hearing for December 4, 1996. Supplemental testimony was received by the Court on said date.

 a. Testimony at the Administrative Hearing

 At the administrative hearing, the Board of Education bore the burden of showing that R.S. was placed in the least restrictive environment in which she would receive an educational benefit. Defendant presented five witnesses. First, defendant offered Elaine Rubel, an expert in learning disabilities and a teaching consultant. (Admin. Tr. Sept. 13, 1995, at 36:8-13). Ms. Rubel testified that R.S. was N.I. and not autistic. (Id. at 142:11-14). Moreover, Ms. Rubel stated that R.S. would benefit most from the least restrictive Garfield School, rather than a residential program. (Id. at 141:17-25). On cross-examination, Ms. Rubel admitted that she does not work with autistic children (Id. at 144-147) and that R.S. was the most unusual child she has tested. (Admin. Tr. Oct. 3, 1995, at 6:6-11). Finally, Ms. Rubel rejected Dr. Adler's diagnosis of autism because of Dr. Adler's own admission that R.S. will continue to be classified as N.I. and the fact that R.S. did not display any signs of autism at an early age (Id. at 45:3 to 46:1).


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