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Mg, (An Infant) By His Parents and Natural Guardians Lg and v. Caldwell-West Caldwell Board of Education

June 30, 2011

MG, (AN INFANT) BY HIS PARENTS AND NATURAL GUARDIANS LG AND JG, LG, AND JG, INDIVIDUALLY, PLAINTIFFS,
v.
CALDWELL-WEST CALDWELL BOARD OF EDUCATION, PEONA DEMELLO,
SCOTT KEENA, BARBARA MEGIBOW, ROBERT CERCO, DANIEL GERARDI, JOHN DOE 1-10, JOINTLY, SEVERALLY AND INDIVIDUALLY, JOANNE CALICE DEFENDANTS.



The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.

OPINION

I. Introduction

In this action, an autistic child, MG, and his parents, LG and JG, bring suit against the Caldwell-West Caldwell School District and certain of its administrators and staff members for violating MG's rights under the U.S. Constitution and New Jersey Law Against Discrimination, and for engaging in tortious conduct. Now before the Court is defendants' motion for summary judgment.

MG is a special education student who is entitled to a free education under the Individuals with Disabilities Education Act (IDEA). Because the facts of this case-and indeed, the majority of plaintiffs' claims-rest heavily on MG's rights under the IDEA, an examination of pertinent provisions of the statute is in order.

II. The IDEA

Under the IDEA, states may receive federal education funding if they offer a free and appropriate public education ("FAPE") to all children with disabilities living within their borders. 20 U.S.C. § 1412(a)(1). The education a state provides must be "specially . . . designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction." D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 556 (3d Cir. 2010) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 188--89, 102 S.Ct. 3034, 3042, 73 L.Ed.2d 690 (1982)). "Although a state is not required to supply an education to a handicapped child that maximizes the child's potential, it must confer an education providing ‗significant learning' and ‗meaningful benefit' to the child." Id. (quoting Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999)).

The centerpiece of the IDEA is the Individualized Education Plan ("IEP"), which sets forth an individualized instruction program for each special education student. 20 U.S.C. §§ 1412(a)(4), 1414(d). "An IEP consists of a specific statement of a student's present abilities, goals for improvement of the student's abilities, services designed to meet those goals, and a timetable for reaching the goals by way of the services." Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000) (citing 20 U.S.C. § 1401(a)(20)). An IEP is created by a "team consisting of the student's parents and teachers, a curriculum specialist from the local school district, and, if requested, a person with special knowledge or expertise regarding the student must develop an IEP." Bayonne Bd. of Educ., 602 F.3d at 557 (citing 20 U.S.C. § 1414(d)(1)(B)). An IEP team is required to meet annually at a minimum to examine a child's progress and evolving needs. 20 U.S.C. § 1414(d)(4).

"Though the IEP must provide the student with a ‗basic floor of opportunity,' it need not necessarily provide ‗the optimal level of services' that parents might desire for their child." Bayonne Bd. of Educ., 602 F.3d at 557 (quoting Holmes, 205 F.3d at 590). "At a minimum, the IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential." Id. (quoting Chambers v. Phila. Bd. of Educ., 587 F.3d 176, 182 (3d Cir. 2009)) (internal quotations and alterations omitted).

Parents may challenge an IEP in an administrative proceeding if they feel it does not provide their child with a FAPE. 20 U.S.C. § 1415(b)(6). If the parents and the school district fail to successfully mediate their dispute, the matter proceeds to a due process hearing before an ALJ. Shore Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 198 (3d Cir. 2004) (citing N.J.A.C. § 6A:14-2.7). "A party to the due process hearing aggrieved by its outcome has the right to bring a civil action challenging the decision in any state court of competent jurisdiction or in a federal district court, without regard to the amount in controversy." Bayonne Bd. of Educ., 602 F.3d at 558 (citing 20 U.S.C. § 1415(i)(2)).

III. Facts

A. The Parties

MG, a child born on February 5, 2001, has been diagnosed with Autism Spectrum Disorder with possible Aspergers Disorder and Attention Deficit Hyperactivity Disorder. (Second Amended Complaint ("SAC") ¶ 4.) In 2004, MG began attending the Harrison School in the Caldwell-West Caldwell public school district ("the district"); he was placed in a self-contained preschool disabled program. (Id. ¶ 10.) Just before the start of the 2007--2008 school year, MG was placed in the Wilson Elementary School in West Caldwell. Again, he was placed in a self-contained classroom where a special education teacher taught him alongside other special education students. (JG Dep. 20:14--24.) While at the Wilson school, he also received speech and occupational therapy and had an all-day one-on-one aide. (Id. 20:14--24, 21:22-- 22:1.)

The defendants are the Caldwell-West Caldwell Board of Education, which operates the school district and, accordingly, the Harrison and Wilson schools (SAC ¶ 5), and certain school district administrators and staff members. Peona DeMello was MG's teacher at the Wilson school during the 2007--2008 school year, and Scott Keena is the principal of the Wilson school. (Id. ¶¶ 17, 19, 20.) JoAnn Calice worked for the district as a case manager and school social worker, and she served as MG's case manager during the 2007--2008 school year until May 2008. (Calice Dep. 13:17--18, 8:18--20, 7:23--24.) Barbara Megibow was the Wilson's school's psychologist and became MG's case manager when they removed him from the Wilson school in May 2008. (SAC ¶ 21; Megibow Dep. 7:24--8:11.) Dr. Robert Cerco was the district's Director of Special Education during the 2007--2008 school year, and Dr. Daniel Gerardi is the district's Superintendent of Schools. (SAC ¶¶ 5, 24.)

B. MG's Diagnosis and Behavioral Background

MG's parents first became aware of the symptoms of MG's autism when he was 3 1/2 years old, when his preschool teacher noticed that he avoided eye contact. (JG Dep. 10:8--9, 11:12--17.) The behaviors he has exhibited include perseverative behavior with doors (i.e., constantly opening and closing them) and echolalia (i.e., repeating what other people say). (Id. 12:9--24, 17:2--8.) He has also had issues with pushing, hitting, and biting other children, and his parents testified that his tantrums occur without explanation and that there is no sure-fire way to resolve them. (Social Assessment of MG, attached to Harrison Aff. as Ex. L; LG Dep. 12:8--10; JG Dep. 25:1--22.) When MG was 5 1/2 years old, he hit his teacher, Mrs. Collins, and thereafter, his parents met with Collins, the school principal (who at the time was Mr. Ayers), MG's occupational and physical therapists, Dr. Cerco, and MG's case manager, and discussed how to better manage MG's behavior. (JG Dep. 37:2--39:19, 79:15--80:2.) After the meeting, Mrs. Collins drafted a behavior plan, but MG's parents never signed on to it. (Id. 39:22--40:22; Collins/Lijoi Behavior Plans, attached to Harrison Aff. as Ex. K.) As he approached his sixth birthday, MG's behaviors in school were becoming unmanageable and disruptive. (Communications, attached to Harrison Aff. as Ex. P, Nov. 3, 2006 email of Tim Ayers.)

C. MG's IEP

In the summer of 2007, the district's child study team met with MG's parents and teacher to develop an IEP. (IEP, attached to Harrison Aff. as Ex. G.) MG's IEP included behavioral goals and objectives, as well as goals related to math and reading, all of which were to be implemented by his teacher, DeMello. (Id. at 10--22.) In addition, the IEP described certain strategies like planned ignoring, positive reinforcement of desired behaviors and reinforcement of appropriate peer behaviors, all of which were designed to encourage positive behavior from MG. (Id. at 5.) MG had responded well to certain of these strategies. (Megibow Dep., 59:4--7.) The IEP also included teaching strategies like using short, structured assignments, giving immediate feedback, emphasizing listening and eye contact, and getting MG's attention before giving him assignments. (IEP at 24.) The IEP did not, however, include a formalized behavior plan intended to deal with aggressive behaviors because at the time, MG had no ongoing problem with aggressive behaviors. (Id. at 9; Megibow Dep. 65:7--11.) For the same reasons, the child study team did not conduct a Functional Behavior Analysis ("FBA"), which is employed to examine and help counteract problem behaviors like aggressiveness.

D. The 2007--2008 School Year

1. The School Discusses MG's Education With His Parents

DeMello became MG's teacher at the start of the 2007--2008 school year. (DeMello Dep. 10:14--17.) During the year, she had 6--8 kindergarten and first grade students in her class. (Id. 11:5--18.) In September and October of 2007, DeMello and JG discussed behavior techniques that had previously worked for MG, including a "token" reward system under which MG would be rewarded with playtime or individual time with DeMello if he cooperated with the lesson plan for a certain amount of time. (Communications at DA000541, DA000552, DA000556--558.) Defendants refer to these behavior techniques as a "behavior plan"; however, plaintiffs assert that the techniques did not constitute a behavior plan because MG's parents never formally consented to it and it was not included in MG's IEP. For purposes of this motion, the Court considers the techniques not to be a behavior plan. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nevertheless, according to communications between DeMello and JG, JG was satisfied with DeMello's use of the token reward system. (Communications at DA000561.)

As the school year progressed, MG exhibited increasingly disruptive behavior, such as "silly talk," which DeMello described as adding a "Y" or "E" sound to the end of words DeMello said or rhyming other students' names during lessons. (DeMello Dep. 47:6--9.) While planned ignoring would sometimes cause MG to stop his "silly" behavior, it was occasionally insufficient, in which case DeMello would seat MG at a desk that was separated from rest of the students and faced the window. (Megibow Dep. 45:3--5.) While plaintiffs characterize this desk as a "dunce chair," they do not quibble with the location or orientation of the chair, and they do not cite to any facts in the record equating it to a dunce chair.

In mid-November, DeMello, and Megibow all discussed via email MG's behaviors and the continued use of planned ignoring. On November 7, DeMello planned to meet with Calice and Megibow regarding a formal behavior plan. (Communications at DA000595.) She informed JG that the meeting would take place on November 12, and after the meeting, she informed JG of what was discussed, including planned ignoring and creating visual methods for MG to track his own behavior. (Id. at DA000603--604.) On November 16, Megibow scheduled a meeting of MG's parents and the child study team for December 6 to discuss the matter further. (Id. at DA000621.) Because MG's parents were ill on December 6, they cancelled the meeting, which was then rescheduled for January 10, 2008. (Id. at DA000646.) In mid-February, JG, ...


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