The opinion of the court was delivered by: WOLFSON, District Judge.
H.M. and E.M., the parents of L.M., a child classified as eligible for
special education services, appeal a ruling by a New Jersey Administrative
Law Judge, which held that New Jersey law precluded the Evesham School
Board from reimbursing L.M.'s parents for the costs attendant to placing
him in a private sectarian school while challenging the Individualized
Education Plan (IEP) proposed by Evesham. For the reasons that follow,
Ireject that interpretation. Where the local board has failed to provide
a child with a free appropriate public education, and the parents'
unilateral placement was appropriate under the Individuals with
Disabilities in Education Act, the sectarian nature of a private school
does not bar reimbursement under New Jersey or federal law.
Through the Individuals with Disabilities in Education Act ("IDEA"),
20 U.S.C. § 1400, et seq., the federal government provides funding to
assist states in educating handicapped children living within their
borders. Bd. of Educ. of the Pawling Cent. Schl. Dist. v. Schutz,
290 F.3d 476, 481 (2d Cir. 2002) (citing Bd. of Educ. of the Hendrick
Hudson Cent. Schl. Dist. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73
L.Ed.2d 690 (1982)). Among the IDEA's purposes is "assur[ing] that all
handicapped children have available to them a free and appropriate public
education ["FAPE"] which emphasizes special education and related
services designed to meet their unique needs." L.P. v. Edison Bd. of
Educ., 265 N.J. Super. 266, 272, 626 A.2d 473 (Law Div. 1993) (citing
20 U.S.C. § 1400(c)). The IDEA realizes this aim by imposing a series
of goals and procedures on participating states. See Schutz, 290
F.3d at 481; L.P., 265 N.J. Super. at 27273, 626 A.2d 473 (describing
requirements of 20 U.S.C. § 1412 and 1413).
Chief among a participating state's duties is that of creating an
Individualized Education Plan ("IEP") for each disabled student within
the state's school system. Susan N. v. Wilson Schl. Dist., 70 F.3d 751,
756 (3d Cir. 1995); see L.P., 265 N.J. Super. at 272-73, 626 A.2d 473
(citing 20 U.S.C. § 1414(d)). In New Jersey, this duty can be assumed
by a local educational agency ("LEA"), such as Evesham. See N.J.S.A.
18A:46-5.1; L.P., 265 N.J. Super. at 273, 626 A.2d 473 (citing N.J.S.A.
18A:46-8). The IEP is a written statement developed by a team comprised
of the disabled student's parents, at least one of his or her teachers,
and other local educational agency employees.
20 U.S.C. § 1414(d)(1)(B). It includes, among other things, a
statement of the student's present educational performance, measurable
annual and shorter-term goals, and the services to be provided to the
child. 20 U.S.C. § 1414(d)(1)(A).
The IDEA grants parents who disagree with the LEA's proposed IEP the
right to challenge the IEP in a "due process" hearing via the state's
administrative law process. Schutz, 290 F.3d at 481 (internal citations
omitted) (citing Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 98
L.Ed.2d 686 (1988)); L.P., 265 N.J. Super. at 27374, 626 A.2d 473. In New
Jersey, this process entails filing a complaint and request for a hearing
with the New Jersey Department of Education. See generally L.P., 265
N.J. Super. at 273-74, 626 A.2d 473; N.J.A.C.6A:14-2.7(c). New Jersey has
further designated its Office of Administrative Law ("OAL") to hear the
special education complaints filed with the Department. L.P., 265 N.J.
Super. at 274, 626 A.2d 473. The dispute is adjudicated by an
Administrative Law Judge ("ALJ"), who has authority under the IDEA and
New Jersey law to deem the LEA's proposed IEP inappropriate. See id.;
N.J.A.C. 6A:14-2.7(n)-(o). The ALJ's decision on ". . . the
appropriateness of the IEP is final and binding on the parties and must be
implemented without undue delay." L.P., 265 N.J. Super. at 274,
626 A.2d 473; N.J.A.C. 6A:14-2.7(g). Aggrieved parties may appeal the
ALJ's decision to a state or federal district court.
20 U.S.C. § 1415(i)(2).
Parents who withdraw their child from public school and unilaterally
place him or her in private school while challenging the IEP may be
entitled to reimbursement of their tuition costs if the ALJ finds that
the LEA's proposed IEP was inappropriate, and that the parents'
unilateral placement was appropriate, under the IDEA. Florence Cty.
Schl. Dist. v. Carter, 510 U.S. 7, 12, 114 S.Ct. 361, 126 L.Ed.2d 284
(1993).*fn1 This is the type of private school placement that is at
issue in this case, and will hereinafter be referred to as a "unilateral
parental placement."*fn2 The U.S. Supreme
Court, in endorsing parental reimbursement in such circumstances, has
reasoned that parents who disagree with an IEP are forced into a Hobson's
choice of simply accepting the perceived inappropriate IEP to the
detriment of their child or paying for an educational opportunity that
they consider appropriate. Id. The Court has remarked that it would be a
hollow victory for parents who successfully challenge the IEP, and find
their unilateral placement vindicated, to then be left without
reimbursement. Id. Such a result would run counter to the IDEA's mandate
of a free appropriate public education being afforded to every child.
2. Factual and Procedural Background
The facts in this case are not in dispute, and are as follows. L.M., a
13 year-old student classified as multiple handicapped, participated in
special education programs in Evesham schools from the 1995-96 through the
1998-99 school year. In May 1999, Evesham submitted its proposed IEP for
the 1999-2000 school year to L.M.'s parents for their approval. The
parents were dissatisfied with Evesham's plan and, when agreement could
not be reached, withdrew him from the school district for that year and,
at their own expense, enrolled him in Orchard Friends School ("Orchard
Friends"), a private Quaker school that they considered educationally
Shortly thereafter, the parents requested a "due process" hearing
before an ALJ, alleging that the IEP proposed by Evesham was
inappropriate and that Orchard Friends was an appropriate placement for
L.M. . The primary relief the parents sought was reimbursement for L.M.'s
private school tuition and related expenses at Orchard Friends for the
1999-2000 school year.*fn3 During the course of the administrative
hearing, Evesham filed a motion to dismiss, arguing that New Jersey state
law precluded it from reimbursing the parents for the cost of the Orchard
Friends tuition. Specifically, it argued that Orchard Friends was a
sectarian school and that N.J.S.A. 18A:46-14, which precludes LEAs from
placing students in religious institutions, also precludes LEAs from
reimbursing parents who unilaterally place their child in such an
institution. Evesham further argued that federal law likewise precludes
After holding an evidentiary hearing on the matter, the ALJ dismissed
the parents reimbursement claim for L.M.'s 1999-2000 tuition. In so
doing, the ALJ agreed with Evesham that: (1) Orchard Friends School is a
sectarian institution; and (2) N.J.S.A. 18A:46-14 precludes LEAs from
reimbursing parents for sectarian school tuition
costs incurred in connection with a unilateral placement.*fn4
18A:46-14 provides that
Whenever a child study team determines that . . . the
most appropriate placement for that child is in an
academic program in an accredited nonpublic school
within the State . . ., the services of which are
nonsectarian, and which is not specifically approved
for the education of handicapped pupils, that child
may be placed in that academic program by the board
of education, with the consent of the commissioner,
or by order of a court of competent jurisdiction.
N.J.S.A. 18A:46-14 (emphasis added). This text is referred to as the
"Naples Amendment" in New Jersey special education law parlance. See
e.g., W.M. and J.M. on behalf of L.M. v. Kinnelon Bd. of Educ., OAL Dkt.
No. EDS09588-01, 2003 WL 722283 (Feb. 3, 2003). The ALJ further
considered, albeit summarily, whether the IDEA preempts this provision.
Relying only on Goodall v. Stafford Cty. Schl. Bd., 930 F.2d 363
Cir. 1991), the ALJ concluded that state bans against funding sectarian
schools do not conflict with the IDEA when applied to unilateral parental
The parents filed a civil action in this court pursuant to 20 U.S.C.A.
§ 1415(i)(2) and 34 C.F.R. § 300.512, challenging the ALJ's
decision. Although vigorously contested before the ALJ, L.M.'s parents no
longer contest the determination that Orchard Friends is sectarian.
Instead they challenge the ALJ's determination that reimbursement for
unilateral parental placements in sectarian institutions is precluded as
a matter of law.
While it is not entirely clear whether Plaintiffs contest the ALJ's
conclusion that, as a matter of state law, the Naples Amendment extends
to unilateral parental placements, they do, however, clearly assert that
the ALJ erred in failing to recognize that federal law precludes LEAs
from applying state standards like the Naples Amendment to unilateral
parental placements such as the one at issue here, citing Florence County
Schl. Dist. v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)
and 34 C.F.R. § 300.403.
Defendant Evesham argues, consistent with the ALJ's decision, that the
Naples Amendment applies to unilateral parental placements as a matter of
state law. In addition, it contends that the extension of the Amendment's
proscription to unilateral parental placements is not barred by the IDEA
and its accompanying regulations. Finally, it asserts that, in any
event, reimbursement for sectarian school placements is prohibited by the
Establishment Clause of the First Amendment of the United States
Constitution because reimbursement would "naturally result" in the
advancement of, or excessive entanglement with, religion. In response to
this challenge, Plaintiffs argue that a LEA's onetime reimbursement to
parents is similar to the type of state funding of sectarian educational
institutions that has been upheld by the U.S. Supreme Court.
Though framed as a summary judgment motion, this matter is actually an
appeal of the state ALJ's ruling. Although I am permitted under the IDEA