The opinion of the court was delivered by: Cooper, District Judge
This case arises under the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400, et seq., and specifically under its "stay put" provision, 20 U.S.C. § 1415(j). Plaintiffs bring this action on behalf of their son, who is a student receiving educational and support services under the Act. Defendant is the regional school district. Plaintiffs are before this Court on interlocutory appeal from a recent stay put placement decision in an ongoing administrative process pending in the New Jersey Office of Administrative Law ("OAL").
The facts relevant to this appeal are undisputed, but the circumstances are unusual. We have reviewed the pertinent record and conducted oral argument. For the reasons stated here, we reverse the current OAL stay put order and reinstate the prior OAL stay put order, with some modification as we will explain.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts are well known to the parties and are thoroughly described in the papers docketed on this appeal. Therefore, we give only the essential description of the facts and the procedural history of the case.
D.S. is a male student, currently age 16, who will turn age 17 during this current 2010-2011 academic year. (Verified Complaint, dkt. 1 ("Ver. Compl."), ¶ 2.) He exhibited developmental issues early in his life, and since second grade he has been diagnosed with Asperger's Syndrome, Attention Deficit Hyperactivity Disorder, and Central Auditory Processing Disorder. (Id. ¶ 8; Smith Aff., dkt. 1-8 ("Smith Aff."), ¶ 2.) He is eligible to receive special education and support services under the category of Autistic. (Ver. Compl. ¶ 4.)*fn1
His local school district is the Branchburg Township Public School District ("Branchburg"). That school district educates its students through the elementary and middle school levels. When its students reach high school age they come under the administration of the Somerville Board of Education ("Somerville Board" or "Board"), through a sending and receiving relationship between Branchburg and the Somerville Board. (Id. ¶¶ 5-7.)
The nature of D.S.'s disability is such that his social interactions are often inappropriate. He was the object of emotional and physical abuse by his peers since first grade in the public school system, which escalated each year despite efforts by the parents and school authorities. (Smith Aff. ¶¶ 4-7.) He progressed through each grade year on schedule academically, but he experienced emotional torment and extremely low self esteem as the object of constant ridicule and bullying. (Id.) During the meeting for an Individualized Education Plan ("IEP") for D.S. at the end of fifth grade, his parents informed Branchburg that they had concluded that public placement in Branchburg was not appropriate. Branchburg officials suggested that the parents allow him to proceed to sixth grade at the Branchburg Central Middle School, which was a bigger school with some new peers (some existing peers), and constant changing of classes. (Id. ¶¶ 8-12.) The parents consented, but the same peer situation quickly developed. Thus, at the public middle school D.S.'s emotional condition further deteriorated, with resulting negative effects on his educational progress. (Id. ¶ 13.)
A crisis point was reached in January of sixth grade, when a serious incident of peers physically attacking D.S. on the school bus was captured on a video security camera. (Id. ¶ 14.) The parents and the Branchburg child study team ("CST") then agreed that Branchburg Central Middle School was not an appropriate placement. They spent the next month (February, 2006) mutually searching for an appropriate placement for him, initially with no success. (Id. ¶¶ 15-17.) As D.S.'s mother describes:
A number of schools were considered for D.S.'s placement including but not limited to the Craig School, the Darcy School, and the Newark Academy. The Craig School rejected D.S., the Darcy School only went to 8th grade so it did not make sense to make D.S. move two times, and the Newark Academy was full. Some of the schools for children with special needs would not consider D.S. because he had an Asperger's Syndrome diagnosis. (Id. ¶ 17.)
The parents located the Timothy Christian School as a possible
placement. It is an accredited private day school offering grades K
through 12. After a series of interviews and meetings, the parents and
the Branchburg CST agreed that it would be an appropriate placement
for D.S. He was placed by Branchburg at the Timothy Christian School
on March 13, 2006 (sixth grade, academic year 2005-2006). His IEP was
changed to reflect his new placement. (Id. ¶¶ 18-20.)*fn2
His IEP program placed him in regular classes, but with a
full-time personal aide, supplemental tutoring, and behavioral
consultation by a licensed Ph.D. behavioral therapist. (Id. ¶ 20; Ver.
Compl. ¶ 18.) D.S. gradually made progress in the new placement.
(Smith Aff. ¶ 21.) Plaintiffs state that "Timothy Christian School's
policy of acceptance and tolerance combined with therapeutic support
has allowed D.S. to make social progress and educational progress."
(Ver. Compl. ¶ 20; see also Smith Aff. ¶¶
An IEP meeting for upcoming academic year 2008-2009 was held on May 28, 2008, at the end of D.S.'s eighth grade year. Those attending included the parents, D.S. himself, the Branchburg CST, and a representative of the Somerville Board because D.S. was reaching his high school years and it was the receiving district. (Smith Aff. ¶ 24.) At the conclusion of that meeting there was general consensus and the parents and the responsible Branchburg official signed his IEP dated May 28, 2008. (Id., Ex. E.) That IEP provided a continuation of his existing placement and basically the same accommodations and support services as his prior IEPs since arriving at that placement. (Id. ¶ 24.) He has continued at the Timothy Christian School since then, receiving the same services, and is currently in eleventh grade, academic year 2010-2011.
Here is how the dispute arose. On October 21, 2008, when D.S. had begun ninth grade, an official in the New Jersey Department of Education ("Department") directed a letter to the parents and to the respective Branchburg and Somerville school district officials. (Smith Aff., Ex. G.)*fn3 That letter referred to a provision of New Jersey law called the "Naples Act,"
N.J.S.A. § 18A:46-14. The Naples Act provides a procedure for school districts to obtain Department consent to place IDEA-eligible students in accredited nonpublic schools that are not specifically approved for education of handicapped children, if certain criteria are met. One of those criteria is that the proposed school must be nonsectarian. Id. The October 21, 2008 letter stated in pertinent part as follows:
As you all are aware shortly after assuming this office it came to my attention that one of our Somerset County students, specifically from the school district of Branchburg, was placed in March 2006 at the Timothy Christian School....
Some investigation into this placement revealed that there was no NAPLES application submitted by the Branchburg School district to the [Department] as is required by law. .... In September of 2008 this student began grade 9 and as such, responsibility for his case management was transferred to the Somerville Child Study Team. .... I am going to outline my expectations for the actions that need to be taken to rectify this situation. The Somerville CST must visit this student at the Timothy Christian School and .... conduct a curriculum audit to determine and document the provision of religious instruction as part of DS's academic program. Upon completion of these activities the Somerville CST should conduct a review of possible new placement options for DS ..., with the highest priority given to a public school placement and/or a placement at Somerville High School.
Then the Somerville CST should meet with the parents of DS for the purpose of determining an appropriate placement in the least restrictive environment in a non-sectarian school. .... I expect that you will utilize the most aggressive timeliness for completion of these required activities. (Smith Aff., Ex. G.)
The parents attended an IEP meeting with D.S.'s current Somerville CST on December 15, 2008, as requested by the Somerville Board. At that meeting the parents were informed that his placement was being changed to Somerville High School, effective January 5, 2009. (Id. ¶ 32.) The parents requested and received an extension to respond until February 2, 2009, so that they could have a behavior analyst observe and assess the appropriateness of the proposed placement. When they could not obtain those services on that schedule, they initiated administrative proceedings on January 29, 2009. (Id. ¶¶ 32-34; Ver. Compl. ¶ 33.)
Administrative due process cases under IDEA are adjudicated in New Jersey by the OAL. On February 18, 2009, the Somerville Board moved for emergent relief asking that D.S.'s stay put placement be changed from the Timothy Christian School to Somerville High School or to the neighboring South Hunterdon High School. (Ver. Compl. ¶ 34.) Administrative Law Judge ("ALJ") Hon. Douglas H. Hurd heard oral argument on March 10, 2009, and rendered an oral decision. (Id. ¶ 35.) He ruled that the Somerville Board had not met the four-prong test for emergent relief under N.J.A.C. § 6A:14-2.7(s), based on balancing the equities.*fn4 He directed that the Timothy Christian School would remain the stay put placement, despite the Somerville Board's "concern about taxpayer money going there." This was on March 10, 2009, when D.S. was still in ninth grade. (Callahan Decl., dkt. 1-7 ("Callahan Decl."), Ex. A at 19-20.)
The due process case proceeded in the OAL, and was reassigned to ALJ Hon. Donald J. Stein. (Ver. Compl. ¶ 38.) Several hearing dates were scheduled and adjourned at the request of the parties. On December 16, 2009, "the parties filed motions for summary decision before Judge Stein as to the issue of whether or not D.S. could remain legally placed at the Timothy Christian School by the BOARD." (Id. ¶ 39.)
ALJ Stein rendered a written opinion on June 1, 2010. (Callahan Decl., Ex. B.) He found there was no factual dispute that Timothy Christian School is a sectarian school. He concluded that D.S. had been placed by the school districts at that school since 2006 in violation of the Naples Act, and since the school is a sectarian school it cannot be approved as a placement for D.S. under the Naples Act. (Id. at 5.)*fn5 ALJ Stein ordered that D.S.'s placement at Timothy Christian School "shall terminate at the completion of the 2009-2010 school year." (Id.) He further ordered "that the District complete an IEP and schedule a meeting within thirty days." (Id. at 6.)
The Somerville Board held an IEP meeting for D.S. on June 17, 2010. The Board's proposed placement for him for eleventh grade, academic year 2010-2011, was again Somerville High School. (Ver. Compl. ¶ 44.)
Plaintiffs initiated the action in this Court on August 16, 2010, with the filing of a Verified Complaint. They applied simultaneously for temporary restraints and a preliminary injunction seeking to have D.S. stay put at Timothy Christian School while the administrative due process case remains pending in the OAL. (Ver. Compl. at 9-11.) Plaintiffs state that the OAL case remains open, to adjudicate whether the proposed placement at Somerville High School, or at South Hunterdon High School, is appropriate for D.S. (Id. ¶ 45.) Plaintiffs also contend that if the placements offered by Somerville are found not to provide D.S. with a free and appropriate public education ("FAPE"), then a unilateral placement of D.S. by them at Timothy Christian School should be approved for them to be reimbursed. (See Plaintiffs' Reply Br., dkt. 7 ("Pl. Reply Br."), at 5, 9-11.)
Plaintiffs have obtained expert evaluations and other evidence to present at the continued OAL proceedings. Their position is that to change D.S.'s placement from the current school at this time would have severely detrimental effects upon his educational progress that could not be remedied in his remaining high school years. (Smith Aff. ¶¶ 35-39 and Exs. J-N.) The Somerville Board contends that its public high school will be an appropriate placement. (Defendant's Br., dkt. 6 ("Def. Br."), at 23-25.) The parents challenge that contention and seek an adjudication on these issues at the due process level. (Pl. Reply Br. at 9-10.) The parties recognize that either side may appeal the administrative ruling under IDEA.*fn6
As soon as the action was brought and assigned here, we consulted with the parties and issued a scheduling order for briefing and oral argument. (Order, dkt. 5.) The parties complied, and oral argument was conducted on October 1, 2010, shortly after the 2010-2011 academic year commenced. (Minute entry, dkt. 8.)
The Court was informed at oral argument that the Board had discontinued funding D.S.'s enrollment and supporting services at Timothy Christian School at end of the 2009-2010 school year, pursuant to the June 1, 2010 ALJ order. When the eleventh grade school term started in September, 2010, while the matter was being briefed for this Court, the parents began paying those costs weekly at their own ...