On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-1192- 98.
Before Judges Keefe, Eichen and Steinberg.
The opinion of the court was delivered by: Keefe, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In these appeals, which we consolidate for the purpose of issuing our opinion, the issue presented is whether a child who is educated at home is entitled to federal and state funded speech therapy services. We hold that current State education law, which differentiates between nonpublic school students and home-schooled students with respect to providing funds for speech therapy, is constitutional, but in the context of the facts of this case was unconstitutionally applied to the infant plaintiff. These are the pertinent facts that gave rise to this appeal. Plaintiff, Howard Forstrom, individually and on behalf of his minor son, Gregory Forstrom, brought this lawsuit against their local school district, defendant Board of Education for the Borough of Fair Lawn, and its Superintendent, defendant Robert Byrne (the defendants). Plaintiff sought a declaration that Gregory is entitled to receive speech and language services and reimbursement for the cost of speech therapy services from August 4, 1997, until services are made available to him. Plaintiff's complaint alleged federal and state statutory and constitutional violations.
Gregory attended Pre-School at the Fair Lawn Public Schools and was evaluated as needing speech therapy for the 1997-98 school year. Thereafter, plaintiff and his wife decided to educate Gregory at home. Plaintiff requested defendants to provide speech therapy to Gregory in accordance with the evaluator's recommendation. Plaintiff was willing to bring Gregory to a public school to receive the therapy. However, because Gregory was being educated at home and not at a "public" or "nonpublic school," defendants denied him speech and language services. Defendants' denial of services was based on a directive issued by the New Jersey Department of Education (the Department), which intervened in this case. Before instituting suit in the Law Division, plaintiff requested both mediation and a due process hearing from the Department. Both requests were denied for the reason that Gregory was not entitled to benefits under either State or federal law as a home-schooled child.
On motions for summary judgment filed by all parties, the Law Division found in favor of plaintiff. The trial judge held that Gregory was entitled to a pro-rata allotment of federal education funds available to students attending nonpublic schools, that the Department had engaged in rule making in violation of the New Jersey Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, when it defined "nonpublic school," and that both the Department and defendants violated Gregory's equal protection right to receive special education services under the New Jersey Constitution. On December 17, 1999, the judge ordered defendants to reimburse plaintiff up to $862.76 for two one-half hour speech therapy sessions per week during the school year from September 1997 to the date of the judgment. The defendants and the Department filed separate appeals from that judgment.
In the first appeal, the Department asserts that the trial judge erred in determining that children instructed at home fall within the definition of "nonpublic school" students under state and federal law. In the second appeal, defendants make two additional claims. They maintain that they acted according to the Department's directive and should not be held to answer for that. They also claim that if home schooling is analogous to attendance at nonpublic schools, Gregory is not entitled to speech therapy services under the federal regulations promulgated under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400-87. In both appeals, the Department and defendants claim that the judge erred in ruling that the Department engaged in rule making in violation of the APA and that the judge erred in ruling that the denial of speech therapy services to Gregory violated his rights under the New Jersey Constitution.
In summary, we hold that, under extant state statutes, education at home does not fit within the definition of a "nonpublic school," nor are speech therapy services mandated for children who are home schooled under federal or state statutes, or their implementing regulations. In addition, the Department did not engage in rule making in violation of the APA. We also hold, as a general proposition, that the differentiation between the treatment of nonpublic school students receiving speech therapy benefits and a home-schooled child is not a violation of the equal protection clause of the United States or New Jersey State Constitutions. However, we conclude that under the facts of this case, the law as applied to the infant plaintiff denied him equal protection.
Depositions of Fair Lawns' Supervisor of Special Education provides additional background for discussion of the issues. She explained that all of the funding for special education and related services (including speech therapy) comes from federal allocations, pursuant to IDEA, plus a specific allocation from State money. Under the IDEA, specifically 20 U.S.C.A. § 1412(a)(10)(A) and 34 C.F.R. § 300.453, each local school district must provide services to children in "private schools." The funding for such services is derived by a formula that produces an amount that is proportional to the number of private school children with disabilities as compared to the total number of children with disabilities in the school district. Ibid.
On December 1, 1997, the Fair Lawn Public Schools conducted a head count of students qualified to receive the benefit of IDEA funds. Because Gregory was not on the rolls of the Fair Lawn Public Schools or a "nonpublic school" on that date, he was not included in the head count. Had Gregory attended a nonpublic school, he would have been eligible for a portion of federal funds because he had been classified as eligible for speech therapy services. For the 1997-98 school year, Fair Lawn had 792 students eligible for special education and related services (including speech therapy). The federal government gave the Fair Lawn Public Schools $510 per child.
This deposition testimony must be understood in the context of the Department's interpretation of the IDEA. Prior to the institution of this suit, the Director of the Department's Office of Special Education Programs informed plaintiff that funding under the IDEA is for students enrolled in public and private schools, and, further, the question of whether home schooling constitutes enrollment in a private school is, according to the federal government, a question of state law. Finally, the Director informed plaintiff that under New Jersey's statutory law home schooling was not the equivalent of enrollment in a private school.
The IDEA provides funding for special services rendered to children with disabilities in three circumstances: children who are enrolled in public school; children who are placed in private schools by a public agency; and children placed in private schools by their parents. Hooks v. Clark Cty. Sch. Dist., 228 F. 3d 1036, 1039 (9th Cir. 2000), cert. denied, ___ U.S. ___, 121 S. Ct. 162, ___ L. Ed. 2d____ (2001).
It is undisputed that Gregory does not fit within either of the first two categories. Although New Jersey by statute N.J.S.A. 18A:38-25, and many other states, by statute, permit home schooling by statute the IDEA does not mention or define it. Regulations promulgated pursuant to the IDEA define "private school children with disabilities" as "children with disabilities enrolled by their parents in private schools or facilities. . . ." 34 C.F.R. § 300.450. What constitutes a private school, however, is determined by state law. Hooks, supra, 228 F.3d at 1039.
In determining that the IDEA leaves the definition of "private school" to state law, the Hooks court relied, in part, on a policy letter issued by the United States Office of Special Education Programs (OSEP), which under 20 U.S.C.A. § 1402(a) is charged with implementing and enforcing the IDEA. 228 F.3d at 1040. That letter states that the "determination of whether a home education constitutes private school placement must be made on the basis of state law." Ibid. (quoting OSEP policy letter, 18 Indiv. with Disabilities Law Rep. 742, 744 (1992)). The Department in this case relies on the same policy letter.
An individual had written to OSEP with the question: "[a]re children with disabilities who are being educated at home to be considered private school students for the purposes of determining whether to provide them with special education or related services?" 18 Indiv. with Disabilities Educ. Law Rep. 742, 742 (1992). The Director of the OSEP replied:
Your third question asks whether students with disabilities who are being home educated are covered by the terms of 34 C.F.R. § 300.403 and 34 C.F.R. § 300.452. Under these provisions, public agencies shall make special education and related services available to children with disabilities who have been enrolled by their parents in private schools or facilities. Part B, however, does not define the term "private school or facility." Consequently, the determination of whether a particular home education arrangement constitutes the enrollment of a child with a disability in a private school or facility must be based on State law. If, under the law of your State, home education constitutes enrollment in a private school or facility, then the requirements of 34 C.F.R. § 300.403 and 34 C.F.R. § 300.452 would apply. [Id. at 744.]
The Hooks court also noted that the United States Supreme Court has taken guidance from OSEP policy letters to define ambiguous provisions of the IDEA. Hooks, supra, 228 F.3d at 1040 (citing Honig v. Doe, 484 U.S. 305, 325 n.8, 108 S. Ct. 592, 605 n.8, 98 L. Ed. 2d 686, 708 n.8 (1988)). The court added that "Congress explicitly ratified OSEP's view that States must define the ambit of 'private schools.'" Ibid. The court stated:
Specifically, the amended IDEA provides inter alia that "[t]he term 'elementary school' means a nonprofit institutional day or residential school that provides elementary education, as determined under State law." 20 U.S.C.A. § 1401(5) (2000) (emphasis added). Elsewhere, the new IDEA's definition of "secondary school" is likewise committed to "State law." 20 U.S.C.A. § 1401(23) (2000). [Ibid.]
When the United States Department of Education issued new IDEA regulations on March 12, 1999, it reiterated its position that state law dictates whether instruction at home constitutes a "private school." The regulations provide:
Definition of "Private School Children With Disabilities" (§300.450)
Comment: Several commenters asked that the Department clarify whether children with disabilities who are home-schooled are included in the definition of ...