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May 3, 2005.

D.E.R. and S.R., individually and on behalf of D.R. Plaintiffs,

The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge


Plaintiffs D.E.R. and S.R., individually and on behalf of their child D.R. (collectively, "Plaintiffs" or the "R.s"), filed this action to challenge the OAL decision and to allege violations of the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400, et seq.,*fn1 Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794, the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12132, and New Jersey's Special Education Law, N.J.S.A. 18A:46-1 et seq. Presently before the court are cross-motions for summary judgment. For the reasons set forth below, the OAL decision will be reversed, and summary judgment will be granted to the R.s with respect to the issues of:

  I. the least restrictive environment in eighth grade Social Studies class and availability of accommodations and modifications;

  II. "exposure" to the eighth grade Science curriculum without measurable goals and objectives and grading on a pass/fail basis; and

  III. the appropriateness of the Step Up Program and the involvement of nondisabled peers in D.R.'s social skills training.

  Summary judgment will be granted to Ramsey with respect to the R.s' discrimination claims under Section 504 and the ADA. Lastly, as a prevailing party in the due process hearing, the R.s will be awarded attorney's fees and costs of $44,691.36.


  Plaintiff D.R. (together with his parents D.E.R. and S.R., the "R.s" or "Plaintiffs") is a student with disabilities who is eligible for special education and related services under the IDEA. D.R. is also a qualified individual with a disability as defined in Section 504 of the Rehabilitation Act and the ADA. D.R. has been diagnosed with specific learning disability, communication impairment, attention deficit hyperactivity disorder, and juvenile onset bipolar disorder. The R.s reside in the Town of Ramsey, County of Bergen and State of New Jersey.

  Defendant Ramsey Board of Education ("Ramsey" or "Defendant") is charged with the conduct, supervision, and management of the Ramsey public schools, which is the school system established to provide a public education to children residing in Ramsey. Defendant Ramsey receives federal financial assistance and is a public entity as defined in Title II of the ADA, 42 U.S.C. § 12131(1).

  The modifications and accommodations contained in the IEP governing his 2003-04 school year included, among other things:
1. giving D.R. extra time to complete assigned work;
2. allowing D.R. to retake tests;
3. giving D.R. class notes; and
4. allowing D.R. to use Inspiration/Kidspiration software to help with the writing process.
  In July 2003, Plaintiffs filed the due process petition that has culminated in the instant action. The due process petition objected to certain components of the proposed Individualized Education Plan ("IEP") for the 2003-04 school year, D.R.'s eighth grade year. The due process petition was transmitted to the Office of Administrative Law ("OAL") for a hearing which began on August 27 and continued on December 1, 4 and 9, 2003 and January 27, 29 and 30, 2004.

  The R.s filed two applications for emergency relief. On or about August 27, 2003, the ALJ granted the R.s' first request for emergency relief and ordered Ramsey to implement the stay-put provision by continuing D.R.'s placement in a mainstream*fn2 eighth grade Social Studies class rather than the resource Social Studies class proposed in the IEP. Ramsey complied with the order, and D.R. spent his eighth grade year in the mainstream Social Studies class with a 1:1 aide and an in-class support teacher of the handicapped. On or about February 5, 2004, the ALJ granted the R.s' second request for emergency relief and ordered Ramsey to allow D.R. to take the Grade Eight Proficiency Assessment ("GEPA") and to participate in the math preparation class for the GEPA. Ramsey complied with this order and D.R. took the GEPA.

  Before the final OAL decision was entered, the parties agreed by consent order that the Director of Special Services would not attend that portion of IEP meetings in which D.R.'s transitional needs and services are discussed and that the administrative record would be sealed.

  On or about March 26, 2004, the ALJ issued a decision in which she ruled in favor of Ramsey with respect to the following issues, which are currently on appeal before the court:
(1) the ALJ concluded that Ramsey's proposal to place D.R. in a resource Social Studies class rather than a mainstream Social Studies class did not deny D.R. a FAPE;
(2) the ALJ ruled that Ramsey was appropriately applying modifications and accommodations as required by D.R.'s specific needs, and that Ramsey was not required to employ a consultant to confer with science and social studies regular and special education teachers regarding modifications to D.R.'s curriculum;
(3) the ALJ concluded that Ramsey's proposal to measure D.R.'s progress in Science class with pass/fail rather than letter grades was appropriate; and
  (4) the ALJ affirmed the placement of D.R. in the "Step Up Social Skills Training Program" for school year 2003 and ordered the child study team to revisit this related service for school year 2004. The Complaint in the instant action contains three counts. Count One seeks attorney's fees and costs, pursuant to 20 U.S.C. § 1415(i)(3)(B), associated with the prosecution of the due process petition and specifically for prevailing on issues in the August 27, 2003, February 5, 2004, and April 14, 2004 orders of the ALJ. In Count Two, the R.s seek reversal of the ALJ's rulings and judgment in their favor finding that Ramsey failed to provide D.R. with a free appropriate public education in the least restrictive environment in violation of the IDEA. Count Three alleges that Ramsey violated Section 504 and the ADA by: (1) giving D.R. a pass/fail grade in his Science class and (2) pulling D.R. out of classes for social skills instruction.


  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 non-moving 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 non-moving party. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, she may not simply "replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Rather, she must "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247. In determining whether there exists a material issue of disputed fact, however, the facts and the inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

  "Summary judgment appears to be the most pragmatic procedural mechanism in the Federal Rules for resolving IDEA actions." A.S. ex rel. S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 539 (D. Conn. 2002) (citation omitted). "The inquiry, however, is not directed to discerning whether there are disputed issues of fact, but rather, whether the administrative record, together with any additional evidence, establishes that there has been compliance with IDEA'S processes and that the child's educational needs have been appropriately addressed." Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 714 (S.D.N.Y. 2003) (citing A.S. ex rel. S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 539 (D. Conn. 2002)).

  In administrative and judicial proceedings, the school district bears the burden of proving the appropriateness of the IEP it has proposed. Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 533 (3d Cir. 1995) (citations omitted). When reviewing an administrative decision, the court "shall receive the record of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B). "Due weight" should be given to the administrative proceedings. Bd. of Educ. of the Hendrick Hudson Cent. School Dist. v. Rowley, 458 U.S. 176, 188-89, 205-06 (1982). Where the district court hears additional evidence that was not before the ALJ, the district court is "free to accept or reject the agency findings depending on whether those findings are supported by the new, expanded record and whether they are consistent with the requirements of the Act." S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003) (citing Oberti, 995 F.2d 1204, 1220 (3d Cir. 1993)). The court should not substitute its own notions of sound education policy for those of the educational agencies they review. Id.


  I. Mootness

  Before reaching the merits of the R.s' claims, the issue of mootness will be considered. Ramsey argues that the Complaint should be dismissed because the R.s' claims are moot and the R.s have not been damaged. The R.s contend that their claims are not moot and should be addressed on their merits. For the reasons set forth below, Ramsey's mootness argument will not prevail.

  "A case becomes moot if (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Jersey Cent. Power & Light Co. v. Lacey, 772 F.2d 1103, 1108 (3d Cir. 1985) (citations omitted). If a defendant has discontinued the challenged activities and there is no reasonable expectation that the wrong will be repeated, the case is moot. Jersey Cent. Power & Light Co. v. Lacey, 772 F.2d 1103, 1108 (3d Cir. 1985).

  Claims are not considered moot if the conduct originally complained of is "capable of repetition, yet evading review," Honig v. Doe, 484 U.S. 305, 318 (U.S. 1988), or in other words: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the complaining party would be subjected to the same action again. Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1008 n. 7 (3d Cir. 1995). In Rowley, the school district argued that the district court erred in reviewing an IEP after the school year had ended and before the school administrators were able to develop another IEP for subsequent years. 458 U.S. at 186 n. 9. The Supreme Court rejected this argument, observing that "[j]udicial review invariably takes more than nine months to complete, not to mention the time consumed during the preceding state administrative hearings." Id. The Supreme Court found that the length of time needed to resolve the dispute through the administrative and judicial process warranted the retention of jurisdiction by the district court because the alleged deficiencies in the IEP were capable of repetition as to the parties before the court, yet would evade judicial review if the district court did not retain jurisdiction. Id. A school year is not long enough for the administrative due process and judicial review proceedings provided under the IDEA to take their course. Oberti v. Bd. of Educ. of Clementon Sch. Dist., 995 F.2d 1204, 1213 n. 14 (3d Cir. 1993).

  The claims at issue in this action fall squarely within the "capable of repetition, yet evading review" exception to the mootness doctrine. Neither the expiration of the 2003-04 school year (to which the IEP at issue pertains) nor D.R.'s attendance at a private school for the 2004-05 school year renders the dispute moot. The record shows a history of litigated disputes between the R.s and Ramsey concerning the provision of an appropriate education in the least restrictive environment for D.R. The conduct complained of in this action — i.e., Ramsey's proposals to place D.R. in a resource class, grade him on a pass/fail basis, "expose" him to curriculum without measurable goals and objectives, provide modifications and accommodations on a case-by-case basis, provide one-on-one social skills training rather than with nondisabled peers — are capable of repetition. For example, the determination of the least restrictive environment ("LRE") is an issue that must be addressed each time an IEP is prepared and has been a recurring issue throughout D.R.'s education. D.R. was born on December 1, 1989 and may be entitled to special education services until he is 21 years old or graduates from high school. See 20 U.S.C. § 1412. During this time, Ramsey is responsible for providing a FAPE in the LRE to D.R., whether D.R. attends Ramsey High School or a private school. Moreover, the R.s "remain interested" in having D.R. educated at Ramsey High School in the future. At oral argument, counsel for the R.s explained that an IEP for the upcoming 2005-06 school year had not been proposed yet, but that the R.s reserve their right to file a due process petition should they disagree with Ramsey's future proposals.

  As for the alleged harm suffered by the R.s, it is true that, despite Ramsey's proposals, the R.s got essentially what they wanted in that D.R. remained in general Social Studies class and received letter grades for most of his eighth grade year as well as his final grade in Science class. In addition to complaining about Social Studies class placement and Science grades, however, the R.s also complain of Ramsey's alleged failure to provide: appropriate modifications and accommodations to aid D.R. in the Social Studies class; notice of pass/fail grading in Science class; measurable goals and objectives for Science class; and social skills training. Whether D.R. has ...

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