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
II. "exposure" to the eighth grade Science curriculum without
measurable goals and objectives and grading on a pass/fail basis;
III. the appropriateness of the Step Up Program and the
involvement of nondisabled peers in D.R.'s social skills
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
(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
(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;
(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.
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 ...