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L.J. v. Audubon Board of Education

December 22, 2006

L.J., A MINOR, INDIVIDUALLY AND BY HIS PARENTS, V.J. &Z.J., PLAINTIFF,
v.
AUDUBON BOARD OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION

This matter is before the Court upon a Complaint and First Amended Complaint filed on behalf of a student, L.J., who is enrolled in the Defendant Audubon Board of Education's school district, who alleges the denial of rights under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq., as well as the Civil Rights Act of 1871 at 42 U.S.C. § 1983. Plaintiff L. J. received a favorable final decision on October 23, 2006 from Administrative Law Judge (ALJ) Joseph F. Martone in an action brought by Plaintiff on July 10, 2006 with the New Jersey Office of Special Education, Docket No. O.A.L. EDS 06203-2006S [Agency Ref. No. 2007-11386].

Plaintiff has alleged, in a motion for a temporary restraining order and contempt, that Defendant Audubon has failed and refused to comply with the final order, and Plaintiff seeks an order of this Court enforcing the ALJ's order with respect to the Individualized Educational Plan (IEP) and compensatory program required to be implemented therein.

Plaintiff alleges that Audubon has failed to comply with the four requisites ordered by the ALJ's order, namely:

1. The petitioner's request that the previously identified interfering behaviors be adequately addressed by a positive behavioral plan shall be required. Based on the testimony of Mr. DiNovi, a qualified behavior specialist shall monitor and adjust the plan.

2. L.J. shall be provided with the sessions of behavior programming he lost during the 2005-06 school year to be provided by qualified personnel at respondent's expense and this compensatory education be completed within one year.

3. At a minimum, the level of ABA-related services of 15 hours per week as established in the 2005-06 IEP shall be strictly complied by the school district. If any sessions are missed by therapists because of absences or any other reason, they shall be made up on an immediate basis by the school district at its own expense.

4. The IEP shall be revised to set forth goals providing clear benchmarks with related instructional materials and methodologies, and the revised IEP shall include provisions for ongoing parental training to generalize interventions and programs.

Z.J. and V.J. v. Audubon Board of Education, OAL Dkt. No. EDS 6203-06 [Agency Dkt. No. 2007-11386], 2006 N. J. Agen. Lexis 8334 at *42-43 (Oct. 23, 2006) (hereafter "ALJ Order").

When this Court entered an Order directing Audubon to show cause why it should not be found in contempt and be ordered to implement the ALJ Order (see Order to Show Cause, filed Dec. 1, 2006), counsel for Audubon responded by objecting to the jurisdiction of this Court in this IDEA enforcement action. The Court heard argument upon the jurisdiction issue on the return date of the Order to Show Cause -- December 18, 2006 -- and reserved decision.*fn1

II. JURISDICTION

Plaintiff claims jurisdiction to enforce the ALJ Order is conferred by 20 U.S.C. § 1415(i)(2)(A) which states:

Any party aggrieved by the findings and decision made under subsection (f) or (k) of this section who does not have the right to an appeal under subsection (g) of this section, and any party aggrieved by the findings and decision made under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of ...


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