The opinion of the court was delivered by: Dickinson R. Debevoise, U.S.S.D.J.
Plaintiff, J.N. and his parents, Plaintiffs, P.N. and G.N., filed this action seeking, among other things, a review of a final decision of the New Jersey Office of Administrative Law ("OAL"), equitable relief, damages and attorneys fees and expenses. The defendants remaining in the case are Daniel Greco, co-executive director of The Windsor School; The Windsor School ("Windsor"); the Ridgewood (New Jersey) Board of education ("Ridgewood" or the "Board of Education"); and John Campion, Director/Supervisor of Special Programs, Special Education of the Board of Education. *fn1 Plaintiffs and the Defendants have moved for summary judgment on various counts of the Amended Complaint. For the reasons stated below, the motions will be granted in part and denied in part as detailed in the conclusion of this opinion.
J.N. was born on June 3, 1986 and is presently nearly 17 years of age. He and his parents reside in the Ridgewood, New Jersey School District. During the 1994-1995 school year when he was eight years old J.N. was classified as eligible under the Individuals with Disabilities Education Act ("IDEA") for special education and related services, and he remained so classified throughout the period relevant to this case. J.N. is also a qualified individual with a disability as defined under §504 of the Rehabilitation Act and the Americans with Disabilities Act ("ADA").
During his kindergarten year J.N. withdrew from the public school kindergarten and began attending a special school. He continued in special schools for most of his subsequent years prior to attending Windsor.
In accordance with the IDEA, J.N. had an Individualized Education Plan ("IEP"), which is a written statement setting forth his level of educational performance, annual educational goals, educational services to be provided and his placement, if not in a regular class. See 20 U.S.C. §1414(d); 34 C.F.R. §§300.340-30.350; N.J.A.C.6A:14-3.7.
In September 1997 J.N. was placed in Windsor pursuant to his IEP. At the time of his placement the Board of Education's child study team described J.N. as a fragile child who was easily frustrated in a school environment and experienced extreme anxiety when asked to accomplish academic tasks. As his anxiety increased he refused to come to school. His IEP team, including P.N. and G.N., concluded that J.N. needed a school setting that would address his sensitivity to school and would provide him with a sense of structure, safety and security.
As set forth in IDEA and its regulations, what will be included in the student's IEP is to be decided at a meeting attended by a variety of participants, including: (i) the parents of the disabled child; (ii) at least one regular education teacher of the child, if the child is participating in the regular education classroom; (iii) at least one special education teacher; (iv) a representative of the district board of education; (v) at least one individual who can interpret the instructional implications of evaluation results; (vi) the student; (vii) other experts; and (viii) when a child has been placed in a private school, a representative of the private school. See 20 U.S.C. §1414(d)(1)(B); 34 C.F.R. §300.344; N.J.A.C. 6A:14-2.3(i)(2); N.J.A.C. 6A:14-7.5(a)(1). While J.N. was enrolled at Windsor, a representative from Windsor was a member of J.N.'s IEP team.
Windsor is a private school approved by the New Jersey State Department of Education for the placement of disabled students by local school districts. When it obtained such approval Windsor executed an affidavit attesting that it would comply with IDEA, state statutes and regulations. The tuition of a substantial number of its students is paid by boards of education. When it accepted J.N. it entered into an agreement with the Board of Education. Among the terms of the 1998-1999 agreement were:
1. The SENDING DISTRICT agrees to purchase the educational
services described in the pupil's individualized education program
for J.N. resident pupil from the SENDING DISTRICT, from the
APPROVED PRIVATE SCHOOL. The APPROVED PRIVATE SCHOOL agrees to
provide the educational services described in the pupil's
individual education program to J.N. in accordance with the
applicable New Jersey Statutes and the rules and regulations of the
State Board of Education.
2. This agreement shall be in effect for the 1998-1999 School
Year. The educational services shall commence on September 3,
10. This AGREEMENT may be terminated by the SENDING DISTRICT or by
the APPROVED PRIVATE SCHOOL upon 15 calendar days written
notification to the other party.
14. The APPROVED PRIVATE SCHOOL as signatory to this contract
agrees to operate in accordance with applicable federal and state
laws, and rules and regulations including but not limited to
J.N. began his fifth grade at Windsor pursuant to a comparable agreement in September 1997 and continued satisfactorily throughout the year with a teacher he liked. He began the next year with a new teacher with whom he did not interact as well. There occurred frequent telephone calls from J.N.'s parents to members of the Windsor staff. Windsor asserts that these telephone calls and J.N.'s frequent absences from school made it impossible to achieve the goals of J.N.'s IEP, requiring that he be terminated from Windsor for educational reasons. Plaintiffs characterize these telephone calls as the exercise of their rights under IDEA and the applicable New Jersey statutes and regulations for which J.N. was terminated in retaliation.
In any event, on December 16, 1998 Greco decided to terminate J.N.'s placement at Windsor. He promptly telephoned P.N., J.N.'s father, and advised him of this determination. At about the same time he communicated the decision by telephone to Dr. Joseph Oxhorn, the Board of Education's Child Study Team Case Manager. At that time it was decided that J.N. could continue at Windsor up to the holiday break on December 23 but that he would not return when the new semester commenced on January 4, 1999 -- nineteen days later.
Campion and Oxhorn, representatives of the Board of Education, met with the parents, G.N. and P.N. on December 17, 1998. They sought to preserve J.N.'s placement at Windsor. No member of the Windsor staff was present. On December 18 J.N. and his parents attended a holiday show at Windsor. The parents attempted to discuss J.N.'s termination with teachers, aides and a parent. Greco considered this to be inappropriate and decided that he did not wish to have J.N. continue at the school. He immediately informed Campion by telephone that J.N.'s effective termination date was December 18, not January 4, 1999. On Monday, December 21 Greco informed Campion in writing that pursuant to their conference call on December 18, J.N. had been immediately terminated from Windsor.
In a letter to Campion dated December 20, 1998, the N.s requested that J.N. be given an opportunity to say good-bye to individuals at Windsor School. They also request that Dr. Greco send a letter to J.N., telling him that J.N.'s termination from Windsor did not have anything to do with J.N.'s actions. Lastly, the N.s indicated that they would be forwarding a list of expenses for reimbursements and wanted to know what Ridgewood planned to do in response to "Windsor's irrational and inhumane treatment" of their son. Campion forwarded the December 20 letter to Greco.
On December 22 Campion wrote to the N.s confirming that Oxhorn proposed for J.N. an excellent opportunity at the BCSSSD middle school in Garfield. He repeated a request that P.N. return forms authorizing him to send confidential information to BCSSSD. He concluded, "I will Fed-ex J's reports and continue the placement process throughout the holiday. With this timeline, J can be placed by the first week in January and allow an appropriate transition between vacations."
On January 4, 1999 P.N. and G.N. wrote to Campion setting forth a series of demands, including:
* Hold a Child Study team meeting with all participants from
Ridgewood and Windsor. This meeting should have been convened
before anyone executed any plan for termination. Ridgewood
School District will arrange.
* Academic one-to-one tutoring at a site outside the home while
there is an interruption in program. Transportation to/from
this site to be provided. We know of a certified teacher that
we would like to use. Cost of tutoring & travel to be paid by
Ridgewood School District.
* Letter indicating that this termination is not J's fault from
Dr. Greco, Windsor, and John Campion, Ridgewood, as soon as
* Visit to Windsor for J to say good-bye and supervised by his
parents or Dr. Mitnick. Any cost for Dr. Mitnick's time is to
be paid for by the Ridgewood School District. Transportation
costs to & from Windsor to be paid for by Ridgewood School
I hope that you appreciate the severity of the situation and
respond expeditiously. In addition, this letter is to you and
should remain in J's file. This letter may not be forwarded
or copied for any individual at the Windsor School or
associated with the Windsor School.
Campion responded the same day to the January 4 letter, writing, among other things:
To respond to your fax from this morning, January 4, 1999, I
would like to review the activities of the last two weeks and
outline our next steps to ensure J's education.
On Wednesday, December 16, 1998, you were informed by Dr.
Greco, Executive Director of the Windsor School, that J's
placement at Windsor School would be terminated. The
termination was due to what Dr. Greco perceived as a pattern
of parental interference and abuse which made it impossible to
meet the needs of J's Individual Education Plan. Dr. Greco
informed Dr. Oxhorn (Case Manager) of his decision, at the
same time that you were informed, and Dr. Oxhorn immediately
The Ridgewood Public Schools has been pleased with the
progress J has made at Windsor School. Therefore, Dr. Oxhorn,
Ms. Crawford, and I met with you on Thursday, December 17 from
2:00 to 4:30 p.m. in an attempt to mediate the situation
between you and the Windsor School. Dr. Oxhorn knew that Dr.
Greco expected an apology for your behavior and assurances
that you would discontinue your interference in the
implementation of J's program at Windsor. In fact, Dr. Oxhorn
prepared a draft of a document that would verify your
agreement to the necessary assurances. You took a copy of Dr.
Oxhorn's draft but were unwilling to sign.
In our follow-up conversation with Dr. Greco, we were unable
to provide him with the assurance that your behavior would
change. At that time, Dr. Greco informed us that he would
remain firm in his decision (from December 16, 1998) to
terminate J from Windsor School and as of Monday, January 4,
1999, J would have to be in a new program. J would be allowed
to attend Windsor School until the end of December, enabling
him to participate in the holiday activities and to provide a
smooth transition into his new program.
On Friday, December 18, 1998, you attended the holiday program
at Windsor School. It was Dr. Greco's perception that you
created a negative situation in his school and he was forced
to discontinue J's program as of that day. Dr. Greco stated
that your behavior affected the entire operation of his
program. Dr. Oxhorn informed you of Dr. Greco's decision.
On Monday, December 21, 1998, both of you visited Bergen
County Special Services School District's Middle School
Program in Garfield with Dr. Oxhorn as a possible placement
for J. There is space available at the program in Garfield
and Dr. Oxhorn felt it would be an appropriate placement for
J. On December 22, 1998 you provided the Special Programs
Office with written permission to forward J's records to
BCSSSD. We expect to arrange an in-take interview for J this
Concerning your request to review J's records. I spoke to Dr.
Oxhorn this morning and he will contact you to select a
mutually convenient time for a record review. He will be
available to review J's file at Benjamin Franklin Middle
School and the Special Programs Office. Dr. Oxhorn has
arranged home instruction for J and the instructors are
prepared to begin today. Dr. Oxhorn has left messages for you
on your voice mail and you have his permission to call him at
home. A Home Instruction IEP will be developed for J while he
is on this interim program. Dr. Oxhorn will also schedule a
meeting with you to review J's current IEP and make the
required changes before placement in his new program.
This letter indicates that Campion sent copies of this letter not only to Board of Education personnel but also to Greco at Windsor. He did not have the N.s' authorization to do so.
On January 7, P.N. and G.N. again requested that "an immediate IEP meeting be convened" and that "[t]his meeting should be convened with the appropriate personnel, including a teacher from the Windsor School." Campion offered home instruction for J.N. while placement was pending. On January 12 P.N. and G.N. once more demanded that an IEP with Windsor and the Board of Education be convened. The two page, single space letter expressed frustration with actions and inaction to that date and sought information whether the two teachers assigned to J.N. on an interim basis were certified. Home instruction was not instituted.
After Campion had provided P.N. and G.N. with information about several schools, on January 25, 1999 J.N. commenced placement at Chancellor Academy II in Rockaway, New Jersey. P.N. and G.N. signed a new IEP reflecting this placement on January 31, 1999. Another IEP was signed on June 14, 1999 reflecting placement at Chancellor Academy II for the 1999-2000 school year. This placement was a success, but nevertheless on several occasions P.N. and G.N. demanded an IEP meeting directly with Windsor and the Board of Education together "to discuss what, if any, concerns Windsor had which led to the termination of the placement at Windsor and to make changes in the IEP if needed to provide appropriate education."
Happily after J.N. entered Chancellor Academy II he made reasonably successful educational progress. When he started there in January 1999 he liked his teachers, he made some friends and reported that "[a]t first I was not really comfortable in going to school at all, but I got settled down after six months." As to his second year at Chancellor Academy II J.N. reported that it went "[a] lot better. I loved it the second year . . . I remember that I started getting along with all the teachers and everything."
J.N. completed Chancellor Academy II in December 2001 and commenced home schooling that continued until the end of the school year. Home schooling took place in the Ridgewood Public Library. J.N. reported, "I loved it. Loved it." After that his child study team, that included his parents, decided that J.N. could enter the high school.
With respect to this case and the events of December 1998 when Windsor terminated him, J.N. testified on October 21, 2002 that his parents occasionally talk to him about it but "I don't care anymore, whatever. If it happens, I don't care. I have lost interest. It was too far back. I don't care anymore. I erased it."
On February 1, 1999 J.N.'s parents filed a petition for a due process hearing with New Jersey Department of Education ("DOE") which was transmitted to the OAL for a hearing. The petition charged that the Board of Education and Windsor terminated J.N. in violation of IDEA and applicable New Jersey regulations, including the requirements that upon appropriate notice to the parents, an IEP meeting be convened to consider any change in a child's IEP, including change in placement, that a representative of the private school participate in IEP meetings to review and revise a child's IEP and that a child's placement be maintained during any proceeding objecting to a change of placement.
The petition also charged that following J.N.'s unlawful termination from Windsor he had been without any education services, requiring the N.s to hire someone to watch him during the day. The petition asserted that the Board of Education denied the N.s' request that instruction at some location other than their home be provided on an interim basis as well as their request for reimbursement for adult supervision of J.N. and for the fees paid to a psychiatrist to whom they took J.N. until the emotional distress caused by the wrongful termination had stabilized. Finally the N.s charged that Ridgewood sent to Windsor confidential written communications between the N.s and the Board of Education, most particularly a letter dated January 4, 1999 from Campion to the N.s.
The petition requested the following relief:
A. Order finding that Respondents violated J.N.'s rights
under IDEA by, among other things, terminating his placement
without written notice and without convening an IEP meeting to
discuss a change in placement and when the Ns objected,
terminating the placement anyway.
B. Order directing Respondents to immediately convene an IEP
meeting which will include the appropriate representatives
from Ridgewood as well as J.N.'s teacher from Windsor and
other appropriate personnel. The purpose of the meeting will
be to discuss what if any concerns Windsor had which led Dr.
Greco to terminate J.N.'s placement at Windsor and to make
changes in J.N.'s IEP if needed to provide him with an
C. Order directing Respondents to allow J.N. to return to
Windsor for up to a day to meet and say good-bye to his
classmates and to the many Windsor professional staff who have
worked with J.N. J.N.'s parents and one other person will be
allowed to accompany him during this visit.
D. Order directing The Windsor School and John Campion from
Ridgewood School to write letters to J.N. explaining that his
leaving The Windsor School had nothing to do with him, his
performance or behavior.
E. Order directing one or both Respondents to reimburse the
Ns for J.N.'s therapy sessions with Dr. David Mitnick.
F. Order directing Respondents to remove any derogatory or
defamatory references to the Ns concerning their involvement
while J.N. was attending Windsor, in particular Dr. Greco's
December 21, 1998 letter to Campion and Campion's January 4,
1999 letter to the Ns, from J.N.'s files and directing
Ridgewood and Windsor to destroy any other copies of these
documents in existence.
G. Order directing Ridgewood to provide J.N. with one-on-one
instruction at a location other than his home until an
appropriate placement is obtained and J.N. begins attending
there and to provide compensatory education for J.N. for lost
H. Order directing one or both Respondents to reimburse the
Ns for the cost of adult supervision for J.N. during the
school day which the Ns had to provide because of the unlawful
termination of J.N.'s placement at The Windsor School.
The petition was decided on cross motions for summary decisions and joint stipulations of facts, that included relevant documents as Exhibits A-BB. Administrative Law Judge the Honorable Mumtaz Bari-Brown ("ALJ"), issued a decision on June 3, 1999. The ALJ found the facts to be generally as recited above and in particular that "Windsor did not abide by the fifteen days notification requirement." She concluded that summary disposition was appropriate.
In her discussion of the question whether the OAL had jurisdiction over Windsor, the ALJ observed that "[h]ad petitioner requested due process and invoked the "stay-put" provision, J.N. could have remained at Windsor pending the resolution of the due process hearings. N.J.A.C. 6A:14-7.6(b)." The ALJ then concluded that "the OAL does not have jurisdiction over a private school in a due process hearing.", citing H.F. v. Pemberton Twp. Bd. Of Ed., 97 N.J.A.R. 2nd (EDS) 101, and therefore no relief against Windsor was available in the due process proceeding.
The ALJ noted that Windsor was obligated to provide 15 days written notice to the Board of Education of its intent to terminate J.N.'s program and that upon receipt of such notice the Board of Education "was obligated to have convened `an IEP meeting according to N.J.A.C. 6A:14-2.3(i)(2). . . without delay and shall include the participation of the appropriate personnel from the receiving school.' N.J.A.C. 6A:14-7.7(a)." The ALJ also noted that Windsor failed to give the 15 days written notice to the Board of Education, advising them orally instead on December 16, 1998. In consequence, as the ALJ put it, "[i]mmediately thereafter, Ridgewood and Petitioners met and attempted to resolve the problems. When the issue could not be resolved, Petitioners agreed to discuss and exchanged correspondence regarding J.N.'s new placement." This resulted in J.N.'s enrollment in Chancellor Academy II within 17 days after termination of his placement at Windsor. These facts, the ALJ held, did not justify compensatory education. The ALJ granted Windsor's and the Board of Education's motions for summary decision and denied the N.s' motion for summary decision.
At about the time the N.s filed their petition for due process they filed a request for a complaint investigation with the DOE's Office of Special Education Programs ("OSEP"). The issues raised in the complaint investigation were similar to those contained in the due process petition.
The OSEP issued a Complaint Investigation Report on November 29, 1999. The Report noted the decision of the ALJ and stated that "[b]ecause federal regulations indicate that hearing decisions are binding, this investigation cannot overturn the ALJ's decision." However, the Report's author obviously disagreed with the conclusions of the ALJ, a disagreement reflected in the corrective actions imposed upon Windsor and the Board of Education.
As to the question of J.N.'s termination the Report stated that ". . . this investigation did determine that the district and the private school failed to follow an appropriate process for terminating this student's educational program . . ." The corrective action required was:
The private school must develop a corrective action plan which
identifies the procedure it will follow to ensure that upon
consideration of termination of an educationally disabled
pupil, the private school will notify the district who in turn
will convene an appropriately configured team, review and
revise the IEP, and provide notice of any proposed changes.
As to the question whether the Board of Education improperly provided a permitted pupil record to Windsor without the N.s' consent, the Report stated that ". . . the director of special services did, in fact, forward the letter (from the Ns to Campion), a permitted pupil record, to the chief school administrator without obtaining the consent of the complainants." The corrective action required was:
The district is directed to develop a corrective action plan
which identifies the procedure it will follow to ensure that
parental consent is obtained prior to sending permitted pupil
records to out-of-district personnel.
Plaintiffs filed this action to review the decision of the ALJ pursuant to 20 U.S.C. §1415. The Amended Complaint also asserts claims under Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794(a); the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. §1232g; the American with Disabilities Act ("ADA"), 42 U.S.C. § 12132, §12182 , and § 12203; the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §1983; the Federal and New Jersey Constitutions; New Jersey's Special Education Law, N.J.S.A. 18A:46-1, et seq.; and for breach of contract.
Because the operative Amended Complaint sweeps several Defendants and/or asserted sources of liability into most of its counts, it would be cumbersome and confusing to discuss the various motions for summary judgment count by count. Instead, the following discussion is largely organized by source of liability, and a concluding summary is provided of the implications for each claim in each count of the Amended Complaint.
In connection with the present motions, the parties have raised a number of evidentiary issues, contending that several items of evidence are not cognizable in support of or in opposition to a motion for summary judgment. In large part because most of the essential facts of the case are not disputed, there is no need to decide these evidentiary issues: the disposition of the various motions does not depend on the resolution of the evidentiary disputes.
Summary judgment will be granted if the record establishes 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).
Rule 56(c) imposes a burden on the moving party simply to point out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met this burden, the burden then shifts to the opposition to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The evidence need not be in a form that would be admissible at trial. Celotex, 477 ...