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G.S. v. Rumson Board of Education

May 3, 2010

G.S. AND K.S., BY THEIR GUARDIANS AD LITEM, T.S. AND M.H.S., AND T.S. AND M.H.S., INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
RUMSON BOARD OF EDUCATION, ROGER CARUBA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF RUMSON SCHOOL DISTRICT, GAYLE GUNNING, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS SUPERVISOR OF SPECIAL SERVICES FOR RUMSON SCHOOL DISTRICT, GREGG HAUSER, INDIVIDUALLY AND IN HIS FORMER OFFICIAL CAPACITY AS INTERIM SUPERINTENDENT OF RUMSON SCHOOL DISTRICT, AND JULIE LIPTON, INDIVIDUALLY AND IN HER FORMER OFFICIAL CAPACITY AS SUPERVISOR OF SPECIAL SERVICES FOR RUMSON SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4605-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2010

Before Judges Stern, J. N. Harris, and Newman.

This appeal comes to us from the Law Division's dismissal of several of plaintiffs' claims with prejudice, and others without prejudice. The parties' disagreement emanates from their putative settlement of a dispute pursuant to the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C.A. §§ 1401 to -1482. We affirm.*fn1

I.

G.S. and K.S. are the children of T.S. and M.H.S. The children were enrolled in the public school district operated by defendant Rumson Board of Education (Board). In 2001, G.S and K.S. were classified as eligible for special education and associated services, which were provided by the Board through the end of the 2002-2003 school year.

In July 2003, the parents filed a due process complaint with the New Jersey Department of Education (Department) pursuant to 20 U.S.C.A. § 1415(b)(6) and N.J.A.C. 6A:14-2.7(a) challenging the Board's discontinuation of its special education and associated services. Eventually, the Board and the parents resolved their disagreements and entered into a stipulation of settlement (stipulation), which was memorialized in a detailed six-page written instrument executed in February 2005. Implementation of the provisions of the stipulation was to commence in that month.

The stipulation was submitted to, and reviewed by, an administrative law judge (ALJ) who concluded that the parties had voluntarily agreed to the entirety of its terms. Because he found the stipulation to be "consistent with the law," the ALJ incorporated the stipulation into his final decision and order dated March 22, 2005, which obligated "the parties [to] comply with the settlement terms and that these proceedings be concluded." The ALJ's decision and order further stated, "[i]f either party feels that this decision is not being fully implemented, this concern should be communicated in writing to the Director, Office of Special Education Programs [within the Department of Education]."

It did not take long before the children's parents felt that the Board was not observing the terms of the stipulation. Less than seven months after it was signed, the first of many disputes over the stipulation's implementation arose. On September 19, 2005, the parents filed a petition for voluntary mediation with the Office of Special Education Programs (OSEP) pursuant to N.J.A.C. 6A:14-2.6(d). Among the areas of concern were the children's Lindamood-Bell test results, the Board's allegedly inadequate individualized educational programs (IEPs) for the children during the 2005-2006 school year, the purportedly truncated and often-interrupted IEP meetings, and the Board's refusal to incorporate pre-teaching of vocabulary, language structure, and review of concepts into the children's learning plan. The parents followed up with the submission of a formal complaint in the Department of Education on November 7, 2005, requesting a due process hearing, which ultimately fell under the stewardship of a different ALJ from the one who had vetted the original stipulation.

After enduring several months of procedural wrangling in the Office of Administrative Law (OAL), in May 2006, the parents withdrew their due process complaint that addressed their concerns surrounding the 2005-2006 school year and the implementation of the stipulation. Within four weeks of this withdrawal, the parents filed a three-count complaint--each denominated as a "Breach of Contract"--in the Chancery Division, seeking enforcement of the stipulation, along with consequential, compensatory, and punitive damages. In response to the Board's motion to dismiss for failure to exhaust administrative remedies, the Chancery Division judge granted such relief, which triggered the first appeal to this court.

Despite affirming the decision of the Chancery Division, we nevertheless expressly refused to terminate the plaintiffs' enforcement action. Instead, in conformity to a then newly-revised administrative regulation of the Department of Education, N.J.A.C. 6A:14-2.7(t),*fn2 and based upon the first ALJ's decision and order, which incorporated Paragraph 15 of the stipulation, we transferred the matter to the OSEP pursuant to Rule 1:13-4(b). In so doing, on May 14, 2007, we expressly stated:

Such OSEP review is directed to proceed expeditiously so that the enforcement issues may be resolved--administratively, judicially, or by agreement of the parties-- well in advance of the 2007-08 school year.

If the OSEP review process is not completed, with all enforcement issues resolved, within forty-five days of this opinion, plaintiffs shall have the right to renew their claims for enforcement by filing a new complaint in the Chancery Division. The forty-five day deadline is imposed for purposes of this case only, and shall not be extended, absent the mutual consent of the parties and OSEP. [T.S. v. Rumson Board of Education, supra, slip op. at 18.]

On May 31, 2007, as part of the remand, plaintiffs outlined for the OSEP every issue that they wanted resolved, and included a request for an investigation of a "subsequent breach of the settlement agreement," which allegedly occurred around March 2007. OSEP responded by recognizing the application of N.J.A.C. 6A:14-2.7(t) to the "subsequent breach of the settlement agreement," and informed plaintiffs that in light of this court's transfer, OSEP would limit itself to the issues that "were before OSEP in September 2005." A separate request for enforcement of the stipulation would be analyzed under the ninety-day rule of the aforementioned regulation.

On June 20, 2007,*fn3 the OSEP issued a six-page letter, which explained the basis for its jurisdiction, outlined the contested issues, "reopened" the parents' request for enforcement that had been previously withdrawn, and then resolved the disputed issues. After analyzing the Board's claim of compliance with the stipulation under the lens of the parents' assertions of non-compliance, together with the disputed interpretations of whether the stipulation applied to IEPs after the completion of the 2004-2005 school year, the OSEP stated:

Upon careful review of the terms of the agreement, the OSEP finds that, contrary to the parents' assertion, paragraph 14 of the Order does not clearly speak to future IEPs.

Where the Order was issued in March 2005, the language may well refer to the children's 2004-2005 IEPs. Accordingly, there is no further action that the OSEP can take with respect to this request for enforcement.

Seventy-nine days later, on September 7, 2007, plaintiffs filed yet another complaint for due process with the Department of Education, this time related to the children's IEPs for the 2007-2008 school year. On that same date, plaintiffs also filed a ten-count complaint against five defendants*fn4 in the United States District Court for the District of New Jersey, which was jurisdictionally and substantively bottomed upon the IDEA. Count one alleged that the Board had committed a breach of contract by failing to implement certain provisions of the stipulation. Counts two through five alleged that the individual school officials each violated plaintiffs' rights pursuant to the Federal Civil Rights Act, 42 U.S.C.A. § 1983 (§ 1983). Count six sought remedies against all defendants pursuant to the Rehabilitation Act of 1973, 29 U.S.C.A § 794 (RA). Count seven sought remedies against all defendants in accordance with the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 to 12213 (ADA). Count eight claimed that all of the named defendants violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Count nine sought common law fraud remedies against only ...


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