The opinion of the court was delivered by: Stephen M. Orlofsky, District Judge
This is the second time these parties have appeared before this Court to adjudicate their rights and obligations under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401-1487 (2003). See S.C. v. Deptford Township Bd. of Educ., 213 F. Supp.2d 452 (D.N.J. 2002). Plaintiff, S.C., a minor child, by his parents, C.C. and K.C., and Defendant, Deptford Township Board of Education ("Deptford"), now cross-move for summary judgment. In addition, Third-Party Defendants, Department of Education of the State of New Jersey ("DOE") and New Jersey Department of Human Services, Division of Developmental Disabilities ("DDD"), move for reargument of issues decided by this Court on August 7, 2002, as reported at S.C, 213 F. Supp.2d 452. For the reasons set forth below, S.C.'s motion for summary judgment shall be granted, and Deptford's cross-motion for summary judgment shall be denied. DOE and DDD's motion for reargument shall be denied, but I shall dismiss DDD from this action on the basis of Eleventh Amendment immunity.
FACTUAL AND PROCEDURAL BACKGROUND
S.C. is an autistic child whose condition poses severe barriers to his ability to learn in an ordinary educational environment. See Compl. at ¶ 1. S.C. resides in Deptford Township, a New Jersey municipality. Because New Jersey has accepted funds from the federal government under the IDEA, Deptford's Board of Education is a "local educational agency" as defined in that Act. See 20 U.S.C. § 1401(15). That is, the Board is primarily responsible for assuring that S.C. will receive a free appropriate public education, or "FAPE." Id. § 1413.
PROCEEDINGS DURING THE DUE PROCESS HEARING BEFORE THE
ADMINISTRATIVE LAW JUDGE
In the period immediately preceding the dispute that produced this litigation, S.C. was attending a day program at the Bancroft School, a facility designed to educate students with special needs. Because S.C.'s maladaptive behaviors were increasing and he was regressing academically, S.C.'s parents requested that Deptford place S.C. in a residential program to teach S.C. to control his maladaptive behavior, to reverse S.C.'s academic regression, and to receive an appropriate education. Compl. at ¶¶ 7-9. Deptford denied this request. Id. at ¶ 10. In response, S.C. and his parents filed a petition for a due process hearing with the New Jersey Department of Education, pursuant to 20 U.S.C. § 1415(i) and N.J. Admin. C. § 6A:14-2.7. Compl. at ¶ 11.
A due process hearing was held in April and May of 2001 before the New Jersey Office of Administrative Law. Id. at §§ 11-12. On August 21, 2001, Administrative Law Judge ("ALJ") Joseph Fidler issued his final decision, in which he found that:
(1) the school district had not met its burden of showing,
by a preponderance of the credible evidence, that it had
offered an appropriate Individual Education Plan ("IEP")
(2) S.C. was not receiving a meaningful educational
benefit at Bancroft as a day student; and
(3) the credible evidence demonstrated that S.C.
required a residential placement of the sort provided
by the Lindens program at the Bancroft School.
See C.C. and K.C. on behalf of S.C. v. Deptford Township Bd. of Educ., OAL Dkt. No. EDS 2069-01, 2001 WL 1023461, at 9-10 (N.J. Adm. Aug. 21, 2001). Judge Fidler ordered Deptford to prepare an appropriate IEP for S.C. in accordance with his findings. Id. No party to the due process hearing questioned whether any state entity other than Deptford would pay for S.C.'s residential placement, and the ALJ did not address that issue.
PREVIOUS PROCEEDINGS BEFORE THIS COURT
After Deptford failed, in the view of S.C.'s parents, to implement Judge Fidler's Order, S.C. and his parents filed a Complaint on October 25, 2001, asking this Court to enforce the ALJ's Order. Deptford, in turn, filed a cross-motion for a stay of the ALJ's decision on November 28, 2001. On December 3, 2001, Deptford answered S.C.'s Complaint and filed a counterclaim challenging the ALJ's findings.
On December 7, 2001, I heard oral argument on S.C.'s motion to enforce, and Deptford's cross-motion to stay, Judge Fidler's final decision and order. On that same date, I held that preliminary injunctive relief was warranted under the "stay put" provision of the IDEA, 20 U.S.C. § 1415(j)*fn1, and I issued an Order compelling Deptford to comply with the ALJ's final decision and order pending further order of this Court. See Order, S.C. v. Deptford Board of Educ., Civ. A. No. 01-5127 (D.N.J. Dec. 7, 2001).
Along with its Answer, Deptford also filed a Third-Party Complaint against DOE and DDD. According to Deptford, DOE and DDD are obligated, under the IDEA, to pay for at least the residential portion of S.C.'s education. Deptford also alleges in its Third-Party Complaint that DOE and DDD have failed to enter into an "interagency agreement" to provide for DDD's provision of services to students who require them in order to receive a FAPE.
On March 14, 2002, the State Defendants filed a Motion to Dismiss Deptford's Third-Party Complaint for failure to state a claim. In the course of resolving that Motion, I determined that this Court may lack subject matter jurisdiction to hear the Third-Party Complaint. Accordingly, on April 16, 2002, I sent a letter to the parties asking for supplemental briefing on the question of this Court's subject matter jurisdiction. The parties promptly filed their additional briefs.
In an Opinion and Order filed August 7, 2002, I held that Deptford had standing to sue DOE and DDD, and that these two state agencies were jointly and severally liable for any reimbursements to which Deptford could establish it was entitled. S.C., 213 F. Supp.2d at 466. I granted DOE and DDD's motion to dismiss on the limited issue of attorney's fees and held that neither agency is responsible for Deptford's costs and attorney's fees incurred in opposing S.C.'s Complaint in the New Jersey Office of Administrative Law and in this Court. Id. at 467. I denied DOE and DDD's motion in all other respects. Id.
S.C. and Deptford now cross-move for summary judgment, pursuant to Fed.R. Civ. 56. S.C. contends that the Court should grant summary judgment in his favor because the record unequivocally establishes that he requires residential placement in order to benefit from a FAPE. In response, Deptford claims that residential placement is not required or justified because S.C. is able to receive a meaningful education without such placement.
In addition, DOE and DDD again argue that the IDEA does not create a cause of action under which Deptford may sue them and have asked this Court to reconsider its August 7, 2002 Opinion and Order. DDD further contends that it "is not involved in the IDEA system and is not an appropriate party to this litigation." See Br. in Supp. of Mot. for Rearg., at 12. In their brief in support of reargument, DOE and DDD have raised, for the first time in this action, the defense of sovereign immunity, see id. at 14, and asserted a broad challenge to the constitutionality of the IDEA itself, id. at 24. As an alternative to their motion for reargument, DOE and DDD seek leave to certify, for interlocutory appeal to the United States Court of Appeals for the Third Circuit, pursuant to 28 U.S.C. § 1292(b), the question of whether DDD*fn2 can be ordered to provide FAPE services under the IDEA. Id. at 32. Finally, DOE and DDD seek "a stay of all matters related to the State in this litigation until the State's immunity contentions are fully resolved." Id. at 34.
This Court has federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331 (2003). I have considered the submissions of the parties and decided these motions on the papers without oral argument pursuant to Fed R.Civ.P. 78 (2003).
MOTION FOR SUMMARY JUDGMENT
A. THE LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY
The legal standard governing summary judgment is well-settled. Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Consol. Rail Corp. ("Conrail"), 297 F.3d 242
, 247 (3d Cir. 2002). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Conrail, 297 F.3d at 247 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242
, 248 (1986)). A fact is material if it bears on an essential element of the plaintiff's claim. Abraham v. Raso, 183 F.3d 279
, 287 (3d Cir. 1999) (citing Anderson, 477 U.S. at 248-251)).
Thus, to survive a motion for summary judgment, the party contesting the motion must demonstrate a dispute over facts that might affect the outcome of the suit. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Anderson, 477 U.S. at 250-52). When considering a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. In evaluating the evidence, the court must "view the inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion." Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (quoting Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999)); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Notwithstanding this deference towards the non-movant, "[t]he mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient" to defeat a motion for summary judgment. Anderson, 477 U.S. at 252.
Summary judgment is proper if, after adequate time for discovery and upon motion, a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Conrail, 297 F.3d at 247 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
After one party has filed a properly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find in its favor. Groman, 47 F.3d at 633 (citing Anderson, 477 U.S. at 250-52). Moreover, "[w]hen a motion for summary judgment is made and supported. . . an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." ...