The opinion of the court was delivered by: Freda Wolfson, Magistrate Judge
Plaintiff Blair Hornstine, a special needs high school senior, seeks the protection of this Court by way of a Temporary Restraining Order ("TRO") to enjoin defendant Moorestown Board of Education ("the Board") from retroactively applying to her a proposed policy amendment that would allow the designation of multiple valedictorians, which she contends would discriminate against her under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("Section 504"). Although defendants granted plaintiff academic accommodations through her Individual Education Plan ("IEP") to redress her disability, as required by the Individuals with Disabilities in Education Act ("IDEA"), they now contend that those same accommodations granted plaintiff an unfair advantage over her non-disabled classmates; they allegedly aim to correct this "fundamental unfairness" by naming as valedictorian, together with, or instead of, plaintiff, a non-disabled student whose weighted grade point average ("GPA") is less than hers.
Given that this case has generated a firestorm of controversy, it is important to emphasize at the outset what this case is not about. First, it is not about whether plaintiff is disabled; that is undisputed by defendants. Second, it is not about the appropriateness of the accommodations plaintiff received through her IEP; she was afforded these accommodations by the Board to level the academic playing field for her, and in fact, her achievements are a model example of a successful IDEA program. This case is about an outstanding student who overcame the hardships of her disability to achieve the best grades in her class, and who is now in danger of having her accomplishments tarnished by her own school's administrators in the name of rectifying an imagined injustice. The record on this application for a TRO makes clear that the Board and Superintendent Paul Kadri ("Kadri"), in particular, apparently propelled by parental and community pressure, have sought to appease these uninformed interests by changing the rules. In so doing, they have embarked on a course to denigrate plaintiff's remarkable achievements as a special needs student, and thus, diminish the recognition due to her, by criticizing the accommodations which these same defendants approved and never challenged. This unfortunate set of circumstances leads me to issue the following opinion.
II. FACTS AND PROCEDURAL HISTORY
Plaintiff Blair Hornstine is an exceptional student. After seven semesters in Moorestown High School, she has achieved the highest weighted grade point average in her class: 4.6894. Her high school transcript shows a remarkable 23 A's, 9 A's, 1 A−, and nothing lower. More than two-thirds of her classes were Advanced Placement ("AP") or Honors, which are by definition more intense than regular classes. She scored a 1570 out of a possible 1600 on her Scholastic Aptitude Test, and will attend Harvard University in the fall of 2003.
Plaintiff has earned these achievements in spite of the undisputed fact that she suffers from a physical disability. Because of this disability, the Board developed an IEP for her, as required by the IDEA, 20 U.S.C. § 1400 — 1491. See Complaint at ¶ 3. As part of her IEP, the Board granted her permission to participate in a hybrid program that allows her to attend morning classes and receive the remainder of her instruction at home from Board staff members. Id. It is undisputed that plaintiff needed this accommodation because her health problems caused "substantial fatigue" which rendered her unable to "attend [and] participate through a full school day." Certification of Paul J. Kadri ("Kadri Cert."), Exhibit D at page 4.
The 2002-2003 Moorestown High School Student/Parent Handbook ("Handbook"), incorporating Board policy, states that the graduating "senior student with the highest seventh semester [weighted G.P.A.] will be named the valedictorian, and the student with the second highest seventh semester [weighted G.P.A.] will be named the salutatorian." Complaint at Exhibit B. Thus, according to the Board policy now in effect, plaintiff should be named valedictorian of her class for the graduation ceremony on June 19, 2003, since she has attained the highest weighted G.P.A.
However, Superintendent Kadri has initiated an effort to change the Board policy to allow for multiple valedictorians and salutatorians. Kadri Cert. at ¶¶ 25-35. According to Kadri, in the fall of 2002 — his first semester as superintendent — he was approached by "parents, students, and other community members" expressing concern that "students were not provided equal opportunities to earn the awards" because plaintiff was granted "accommodations . . . in a disparate manner." See id. at ¶ 7. Kadri also alleges that he was told that plaintiff's father intended to manipulate the special education laws to ensure that his daughter became valedictorian. Id. at ¶¶ 8-9.
On September 19, 2002, Kadri met with plaintiff's father, Louis Hornstine. Kadri and Mr. Hornstine have very different recollections of this meeting. Compare Kadri Cert. at ¶¶ 10-24 with Louis Hornstine's Certification ("L. Hornstine Cert."), Plaintiff's Reply at Exhibit H, ¶¶ 12-24. Kadri portrays Mr. Hornstine as an overzealous parent bent on manipulating the system to ensure that his daughter does not suffer "the same embarrassment" he suffered when he was merely the salutatorian of his graduating class. Kadri Cert. at ¶ 14. Mr. Hornstine disputes most of Kadri's account of the meeting, stating, for example, that he was not salutatorian of his class, since his "class rank was never that high." L. Hornstine Cert. at ¶ 19. Plaintiff offers the certification of Assistant Superintendent Judithann Keefe, who was also present at the meeting, in support of Mr. Hornstine's account. Certification of Judithann C. Keefe, Ed.D. ("Keefe Cert.").
However, the Court will not involve itself in the apparent quarrel between Mr. Kadri and Mr. Hornstine because it is not relevant to this case. It is undisputed that Mr. Hornstine could not affect his daughter's curriculum in any way without the express authority of the School Board. See Lascari v. Bd. of Ed. of Ramapo Indian Hills High Schl. Dist., 116 N.J. 30, 44 (1989) (stating that the local school district is vested with the responsibility of formulating and implementing special needs students' IEPs); N.J.S.A. 18A:46-5 and -5.1. Thus, whether or not Mr. Hornstine intended to manipulate the system is immaterial: the Board approved every aspect of plaintiff's curriculum through her IEP.
In any event, in the fall of 2002, Kadri began an "investigat[ion]" into plaintiff's disabled status and attendant course load. Kadri Cert. at ¶ 25. On November 20, 2002, Kadri was present at a meeting with plaintiff, her IEP team, and her parents. Complaint at ¶ 9. Plaintiff's treating physician and the IEP team agreed that due to her medical condition at the time, a reduction in the number of her courses was necessary. Id. at ¶ 8. Yet Kadri ordered that the school physician review plaintiff's medical condition. Id. at ¶ 9. The school physician agreed that a "reduction in course load is medically appropriate due to her exhaustion and overextending herself this year." Id. at Exhibit A. Kadri, however, refused to allow plaintiff to drop a class. She instead withdrew from AP European History and enrolled in Honors Contemporary U.S. History. See L. Hornstine Cert. at ¶ 2, and Kadri Cert. at Exhibit B.
In the fall of 2002 and early 2003, Kadri held impromptu meetings with the Board attorney, the Child Study Team, and supervisors within the school system to discuss plaintiff's IEP and disability status, G.P.A., and valedictorian status. Complaint at ¶ 12. In December 2002, the Board contacted plaintiff's home instructors to "validate and verify" her educational curriculum. Id. at ¶ 13; Steven Grill's Certification ("Grill Cert."), Plaintiff's Reply at Exhibit B, ¶ 9; John O'Neill's Certification ("O'Neill Cert."), Plaintiff's Reply at Exhibit E, ¶ 7. Plaintiff alleges, and one of her home instructors certifies, that the Board did not inquire into the curricula of other home-schooled students. Complaint at ¶ 13; O'Neill Cert. at ¶ 8.
Moreover, Kadri has made his desire to award multiple valedictorians public knowledge among plaintiff's classmates. In January 2003, at a dinner meeting with the school's class officers, he discussed the possibility of declaring multiple valedictorians. Furthermore, in late February 2003, he addressed the same issue to an assembly of the entire senior class, while plaintiff was present. Complaint at ¶¶ 14,17.
In the last few weeks, Kadri has placed a proposal before the Board that its policy be amended to allow for multiple valedictorians. Kadri Cert. at ¶ 35. The proposed amendment to the policy reads:
In determining the recipients of [the awards of
valedictorian and salutatorian], the Board may review
the program of study, manner of instruction, and other
relevant issues, and in its discretion, with the
assistance of the administration, may designate multiple
valedictorians and/or salutatorians to ensure that all
students have an equal opportunity to compete for these
Id. That amendment received a public reading on May 1, 2003, and, while the Board was not scheduled to vote on the proposal until May 12, Kadri sent a letter on May 6 to K.M., the non-disabled classmate who defendants apparently wish to name as valedictorian along with, or instead of, plaintiff, informing him that he "certainly will be considered for the valedictorian award." K.M.'s Motion to Intervene at Exhibit A. While K.M. is an extremely gifted student, it is undisputed that his weighted G.P.A. at the end of the seventh semester was lower than that of plaintiff.*fn1
Moreover, despite plaintiff's higher weighted G.P.A., Kadri did not send her a similar letter informing her that she will be considered for the valedictorian award.
Kadri does not disguise the fact that the proposed policy amendment to award multiple valedictorians is directed at plaintiff. In his certification, he avers that the current policy of awarding the student with the highest weighted G.P.A. the title of valedictorian is unfair as applied to plaintiff's graduating class because other students "were not afforded the accommodations which [p]laintiff enjoyed." Id. at ¶ 34. Specifically, Kadri contends that "[p]laintiff was able to earn more `weighted' grades" than her "regular education peers" because of the "availability of many AP courses in her home instruction program, and she was also able to secure higher grades in her home instruction classes than students enrolled in the same courses at Moorestown High School." Id. at ¶ 32, 26. Kadri questions the experience of plaintiff's AP home instructors, and contends that the home instructors "did not confer with Moorestown High School AP teachers regarding grading or implement the same grading system." Id. at ¶ 29. He further claims that, on occasion, when plaintiff realized she would not be able to secure a high grade in a difficult in-school class, she either withdrew from the class or sought home-school instruction. Id. at ¶ 28. He also suggests that plaintiff's father hand-selected her home instructors. Id. at ¶ 29. Lastly, Kadri asserts that plaintiff gained an unfair advantage over her non-disabled classmates because she was not required to take physical education, and was instead able to enroll in a higher-weighted course. Id. at ¶ 30.
Plaintiff strongly disputes Kadri's contentions. Before plaintiff was allowed to enroll in any home instruction course, the Board approved the curriculum of the course and the home instructor. See Plaintiff's IEP, Complaint at Exhibit A. Plaintiff's IEP specifically states that "standard grading practices will apply" and "grading in Home Instruction classes will be determined by the Home Instructor in conjunction with the regular class teachers." Id.; L. Hornstine Cert. at ¶ 4. In fact, in one of plaintiff's home instruction courses, AP Calculus, she was required to take chapter tests graded by her home instructor as well as the same mid-term exam as her non-disabled classmates, graded by the in-school instructor. Connie Nothdurft's Certification ("Nothdurft Cert."), Plaintiff's Reply at Exhibit C, ¶¶ 5-10. Plaintiff received an A on the in-school exam, and an A average on her home instructor's tests. Her home instructor stated in a certification that "[i]n retrospect, perhaps my grading is actually more rigorous than the school's own" grading. Id. at ¶ 10.
With respect to Kadri's allegation that plaintiff withdrew from in-school classes in order to protect her high G.P.A., plaintiff notes that she withdrew from two classes, with the school's permission and, in both cases, withdrawing actually lowered her G.P.A. L. Hornstine Cert. at ¶ 2. For one of the classes from which she withdrew, the record contains evidence that the school's own physician agreed with plaintiff's IEP team and treating physician that such a reduction in course load was medically necessary. Plaintiff's IEP, Complaint at Exhibit A. Similarly, plaintiff waived out of physical education because her physician determined it was necessary. See Kadri Cert. at ¶ 22.
Despite Kadri's implication that plaintiff's father hand-picked her home instructors, Mr. Hornstine responds that the only teacher he referred was Mr. O'Neill, plaintiff's Latin teacher, because no Latin teacher at the school was willing to teach home-bound students. L. Hornstine Cert. at ¶ 6. The Board approved Mr. O'Neill's appointment. Id. Furthermore, it is of no moment whether Mr. Hornstine had suggested one, several, or all of his daughter's homebound instructors since the Board had the exclusive authority to approve and hire these instructors and did so in each case.
In addition, while Kadri claims that, unlike her "regular education peers," plaintiff "could take as many AP or Honors courses as she wanted to," plaintiff cites two examples of situations in which her special education status actually prevented her from taking AP or Honors courses. L. Hornstine Cert. at ¶ 10. The school would not allow her to receive home instruction for AP Biology because it could not provide for the lab component. Id. Similarly, the school could not find a suitable home instructor for Honors National Government, so plaintiff had to take the unweighted standard course "You and the Law."*fn2 Id.
Moreover, a comparison of plaintiff's transcript with that of K.M. reveals that he had a mathematical advantage over plaintiff. Statistically, he took more weighted courses than plaintiff. In the four years at Moorestown High School, plaintiff took 8 AP courses whereas K.M. took 10, and plaintiff took 15 Honors courses while K.M. took 12. AP courses are weighted more heavily than Honors courses. An AP class is worth one grade point more than a standard class, and an Honors class is worth one-half grade point more than a standard class. For example, an A in standard Latin is a 4.3; an A in Honors Latin is a 4.8, and an A in AP Latin is a 5.3. Since K.M. completed 2 more AP courses than plaintiff, and she completed only 3 more Honors classes than he, compared to him, plaintiff was at a weighted course disadvantage.
In a strained and relentless effort to further show that plaintiff's accommodations gave her an unfair advantage over her non-disabled classmates, Kadri submitted a late supplemental certification on May 7, 2003, one day before the TRO hearing. Paul J. Kadri's Supplemental Certification ("Kadri Supp. Cert."). Kadri makes numerous re-calculations of plaintiff's weighted G.P.A. to reflect hypothetical curricula for plaintiff had she been a non-disabled student and required to take an in-school curriculum. He even provides as an illustration a faux transcript for plaintiff (and assures the Court that the Board does not intend to submit the transcript to any college or university). Id. at ¶ 12 and Exhibit C. The end result of his series of conjectures is that plaintiff's re-calculated G.P.A. would have been lower than K.M.'s — by five thousandths of a point. Id. at ¶¶ 12-13. The fact that Kadri's speculative calculations, theoretical curricula, and hypothetical alternative transcript can produce only a .005 difference between the top two students highlights the weakness of defendants' position and the lengths to which Kadri is prepared to go to deny plaintiff sole valedictorian status to appease the Moorestown community. Furthermore, Kadri fails to mention the salient fact that, in reality, K.M., who was not afforded any of the accommodations given to plaintiff, nonetheless had a statistical advantage over her in terms of the weighted courses taken by both students.
In his continued effort to denigrate plaintiff's accomplishments, Kadri notes that he has "reviewed the transcripts of the past six valedictorians, and none of those students earned straight A grades, like Plaintiff received during her junior year." Id. at ¶ 10. He is referring to plaintiff's junior year accomplishment of earning an A in all ten of her classes. Instead of applauding plaintiff's achievements, he insinuates that since no valedictorian in the past six years was able to achieve grades as high as plaintiff did in her junior year, then plaintiff's success must be due to some unfair advantage.
The Board and Superintendent Kadri have made clear that they have no intention of allowing plaintiff to be the sole valedictorian, even though she has earned the highest weighted G.P.A. after seven semesters. Worse yet, the fact that Kadri informed K.M. — and not plaintiff — that he was being considered for the award raises the possibility that the Board may not select plaintiff for the honor at all. Indeed, the proposed policy amendment is vague enough to allow the Board to avoid naming the student with the highest seventh semester weighted G.P.A. as one of the valedictorians. Perhaps with this possibility in mind, defense counsel at oral argument did not state on the record that the Board definitely would name plaintiff one of the valedictorians.
To prevent the Board from retroactively applying the proposed amendment, plaintiff filed an Application for Emergent Relief with the Director of the New Jersey Department of Education — Office of Special Education on April 17, 2003, seeking a due process hearing. Complaint at Exhibit F. By way of letter dated April 22, the Office of Special Education denied plaintiff a hearing for lack of jurisdiction. Id.
On May 1, 2003, plaintiff filed a verified complaint in this Court, seeking injunctive relief and money damages against the Township of Moorestown,*fn3 the Moorestown Board of Education, and Superintendent Kadri, for the following causes of action: invasion of privacy under the Family Education Rights and Privacy Act ("FERPA"), violation of the Americans with Disabilities Act ("ADA"), the Rehabilitation Act of 1973, the New Jersey Law Against Discrimination ("NJLAD"), 42 U.S.C. § 1983, procedural and substantive due process rights, and denial of equal protection. Also on May 1, plaintiff filed an Order to Show Cause seeking a TRO enjoining defendants from naming multiple valedictorians, and defendants submitted their opposition.
On the same day, this Court scheduled a hearing for May 8 and permitted the parties to submit additional briefing. The parties submitted supplemental briefing and certifications. Defendants also filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on procedural grounds. Additionally, K.M. filed a motion to intervene and a motion for adjournment.
The Court held oral argument on May 8, at the close of which the Court read an oral opinion into the record, which granted K.M.'s motion to intervene, denied K.M.'s motion for adjournment, granted ...