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March 31, 2003


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.


1. The IDEA

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. Id.

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 appropriate.

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 reimbursement.

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 N.J.S.A. 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 (4th Cir. 1991), the ALJ concluded that state bans against funding sectarian schools do not conflict with the IDEA when applied to unilateral parental placements.

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.


1. Standard of Review

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 to consider additional evidence not presented below, D.B. v. Ocean Township Bd. of Educ., 985 F. Supp. 457, 500 (D.N.J. 1997); 20 U.S.C. § 1415(i)(2)(B)(ii), the IDEA requires that "due weight" be given to the ALJ's ruling. Hendrick Hudson Ctrl. Schl. Dist. v. Rowley, 458 U.S. 176, 205-06, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Carlisle Area School v. Scott P., 62 F.3d 520, 529 (3d Cir. 1995) cited in D.B., 985 F. Supp. at 500. Accordingly, I must consider the Judge's factual findings and, should I choose to find differently, explain my rationale for so doing. Carlisle, 62 F.3d at 529. However, my review over questions of law and the ALJ's application of legal precepts is plenary. Id. at 528, n. 3; D.B., 985 F. Supp. at 500; Bucks Cty. Dept. of Mental ...

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