The opinion of the court was delivered by: Irenas, Senior District Judge
HONORABLE JOSEPH E. IRENAS
Plaintiffs, Adam Gutin, and his parents, Mitchell and Margo Gutin, bring this § 1983 suit against the Washington Township Board of Education (the "Board of Education" or "School Board") asserting violations of Adam's constitutional, federal, and state statutory rights arising out of Adam's positive drug tests and subsequent expulsion from Washington Township High School. Presently before the Court is the Board of Education's Motion for Summary Judgment.*fn1
During the 1999-2000 academic year, Plaintiff Adam Gutin was a 15 year-old ninth-grade student at Washington Township High School. Because Adam had been diagnosed with Attention Deficit Disorder ("ADD"), an "Accommodation Plan" pursuant to Section 504 of the Rehabilitation Act was created for Adam on November 1, 1999. The plan's "intervention strategy" included seating Adam near "the source of classroom action" and away from distractions; creating weekly progress reports detailing Adam's behavior, missed assignments, and grades; and providing Adam individual after-school help.
About two weeks after the Accommodation Plan's creation, Adam's parents requested that a Child Study Team ("CST") evaluate Adam to determine whether he had a specific learning disability*fn2 that would make him eligible for special education services under the Individuals with Disabilities Education Act ("IDEA").*fn3 The CST met with Adam's parents twice and considered Adam's past and current academic achievement levels; standardized test scores (including IQ scores); previous psychological, learning, and psychiatric evaluations; and his medical diagnosis of ADD. The CST also "consulted with" Mr. John Tortoriello, who was Adam's "504 Case Manager / Guidance Counselor." (Defs' Ex. 1, B & C)*fn4
On December 8, 1999, the CST informed Adam's mother by letter that, after reviewing all of the information, "it is unlikely that Adam would meet the eligibility requirements for classification under present State guidelines.*fn5 Based upon that, the Child Study Team, together with yourself, agreed that Adam does not require a full Child Study Team evaluation at this time." (Defs' Ex. 1, B) The letter informed Adam's mother how to appeal the decision but no appeal was taken. Thus, no IEP was ever created for Adam.
Then, on December 21, 1999, one of Adam's teachers, Ms. Pasquarel, observed him behaving unusually. In particular, she observed that Adam was sleeping in class, had glassy eyes, and complained of nausea, leading her to conclude that Adam was under the influence of drugs.
The State of New Jersey and local school boards throughout the State have adopted extensive and detailed procedures which govern the steps to be taken when a student is suspected of being intoxicated. New Jersey law mandates that:
Whenever it shall appear to any teaching staff member, school nurse or other educational personnel of any public school in this State that a pupil may be under the influence of substances as defined pursuant to section 2 of this act,*fn6 other than anabolic steroids, that teaching staff member, school nurse or other educational personnel shall report the matter as soon as possible to the school nurse or medical inspector, as the case may be, or to a substance awareness coordinator, and to the principal or, in his absence, to his designee. The principal or his designee, shall immediately notify the parent or guardian and the superintendent of schools, if there be one, or the administrative principal and shall arrange for an immediate examination of the pupil by a doctor selected by the parent or guardian, or if that doctor is not immediately available, by the medical inspector, if he is available. If a doctor or medical inspector is not immediately available, the pupil shall be taken to the emergency room of the nearest hospital for examination accompanied by a member of the school staff designated by the principal and a parent or guardian of the pupil if available. The pupil shall be examined as soon as possible for the purpose of diagnosing whether or not the pupil is under such influence. A written report of that examination shall be furnished within 24 hours by the examining physician to the parent or guardian of the pupil and to the superintendent of schools or administrative principal. If it is determined that the pupil was under the influence of a substance, the pupil shall be returned to his or her home as soon as possible and shall not resume attendance at school until the pupil submits to the principal a written report certifying that he or she is physically and mentally able to return thereto, which report shall be prepared by a personal physician, the medical inspector or the physician who examined the pupil pursuant to the provisions of this act.
State administrative regulations further provide:
(a) In instances involving alcoholic beverages, controlled dangerous substances other than anabolic steroids, or any other chemical or chemical compound as identified in N.J.S.A. 18A:40A-9 and N.J.A.C. 6A:16-4.1(a), the following shall apply:
1. Any educational staff member or other professional to whom it appears that a student may be currently under the influence of alcohol or other drugs on school property or at a school function shall report the matter as soon as possible to the principal and the certified or non-certified school nurse or the school physician, according to the requirements of N.J.S.A. 18A:40A-12.
i. In the absence of the principal, his or her designee shall be notified.
ii. In instances where the principal and the certified or non-certified school nurse or the school physician are not in attendance, the staff member responsible for the school function shall be immediately notified.
iii. The referring staff member shall complete the Violence, Vandalism and Substance Abuse Incident Report, according to the requirements of N.J.S.A. 18A:17-46 and N.J.A.C. 6A:16-5.3.
2. In response to every report by an educational staff member or other professional of suspected student alcohol or other drug use, the principal or his or her designee shall:
i. Immediately notify the parent and the chief school administrator; and
ii. Arrange for an immediate medical examination of the student for the purposes of providing appropriate health care for the student and for determining whether the student is under the influence of alcohol or other drugs, other than anabolic steroids.
3. The medical examination shall be performed by a physician licensed to practice medicine or osteopathy that is selected by the parent.
i. The district, in cooperation with medical professionals licensed to practice medicine or osteopathy, may establish the minimum requirements for the medical examination.
ii. When the medical examination is conducted by a physician selected by the parent, the examination shall be at the expense of the parent and shall not be at the expense of the district board of education.
4. If the physician chosen by the parent is not immediately available, the medical examination shall be conducted by the school physician.
i. If the school physician is not available, the student shall be accompanied by a member of the school staff, designated by the principal, to the emergency room of the nearest hospital for examination.
ii. The student's parent, if available, shall also accompany the student.
iii. When the medical examination is conducted by the school physician or a physician at the emergency room of the nearest hospital, such examination shall be at the expense of the district board of education.
10. If there is a positive determination from the medical examination, indicating that the student's alcohol or other drug use interferes with his or her physical or mental ability to perform in school:
i. The student shall be returned to the care of a parent as soon as possible.
ii. Attendance at school shall not resume until a written report has been submitted to the parent, the principal and chief school administrator from a physician licensed to practice medicine or osteopathy who has examined the student to determine whether alcohol or other drug use ...