United States District Court, D. New Jersey, Camden Vicinage
Brett E.J. Gorman, Esquire, Parker McCay PA, Mt. Laurel, New Jersey, Attorney for Plaintiff.
Ira M. Fingles, Esquire, Hinkle & Fingles, Esqs., Lawrenceville, New Jersey, Attorney for Defendants.
RENÉE MARIE BUMB, District Judge.
This matter is before the Court on the parties' crossmotions for summary judgment pursuant to Fed.R.Civ.P. 56(a). [Docket Nos. 23 and 30]. The Court has jurisdiction over this matter under 20 U.S.C. § 1415(i)(2). For the reasons set forth below, the Court grants Plaintiff Alloway Township Board of Education's motion in part and denies the motion of Defendants C.Q. and R.Q., and remands for reconsideration consistent with the reasoning set forth below.
C.Q. is a student in the Alloway Township School District ("Alloway" or "District"). During the 2011-12 school year, C.Q. was in fourth grade and placed in an in-district educational program. Plaintiff's Statement of Material Facts Pursuant to L.Civ.R. 56.1 ("PSMF"), Docket No. 23-2, at ¶ 4. C.Q. had three special education teachers throughout the school day, an instructional aide, and was educated with only one other student. Id . at ¶ 5. He was with non-disabled and lesser disabled peers during lunch and in the resource center. Defendants' Response to PSMF ("Def. Resp."), at ¶ 5. According to Alloway, C.Q.'s behavior, such as spitting, hitting, hair pulling, and toileting problems, increased to the point where it became very difficult to control C.Q. in the school environment. Id . at ¶ 6. After trying different measures, such as a resource center, behavioral consultant, a one-on-one teacher, which did not address C.Q.'s educational and behavioral needs, Alloway concluded that it could no longer offer C.Q. an appropriate education and therefore recommended that C.Q. attend an out-of-district placement for the 2012-13 year. Id . at ¶¶s 7-18.
Defendants dispute that C.Q. was not making significant and meaningful academic progress. Def. Resp. ¶ 9. Although they are upset with the District's portrayal of C.Q., they do not dispute that it was "difficult [for Alloway] to provide academic instructions because of C.Q.'s frequent behavior problems." Def. Resp. ¶ 11.
Sometime in February 2012, Alloway advised C.Q.'s parents that it was considering an out-of-district placement. Alloway invited the parents of C.Q. to look at various out-of-district programs. Docket No. 23, Ex. D, page 83. The parents, however, refused to look at any other programs: "[we] are not interested in looking at any other programs and we wouldn't want to misrepresent ourselves by going to see any other programs/schools. But, you may forward us the names of placements that you are considering. The purpose of our letter was to reiterate our disagreement with a change of placement. I hope that was clear and we remain steadfast in that belief." Id.
On March 6, 2012, the District convened a meeting of the Individualized Education Plan ("IEP") team, which only C.Q.'s father attended. Defendants Statement of Material Facts Pursuant to L.Civ.R. 56.1 ("DSMF"), Docket No. 30-2, at ¶ 8. At the meeting, the District informed C.Q.'s father of the decision to place C.Q. at Salem County Special Services. DSMF ¶ 8. The March 2012 IEP recommended a self-contained out-of-district program, with a hand-written notation, "Salem County Special Services - Pittsgrove Middle School Program." Ex. C-2 Defendants claim that they were given no information as to why SCSS was preferable over C.Q.'s continued placement at Alloway or any specifics regarding C.Q.'s education at SCSS. Alloway denies this claim, and contends that the parents refused: to consider any program other than an in-district placement, to visit SCSS, or to engage in any meaningful discussion relating to the SCSS placement. Plaintiff's Response to DSMF, ¶¶s 9-10, Docket No. 34-1.
Eight days after the IEP meeting, Defendants C.Q. and R.Q., on behalf of C.Q., requested mediation and a due process hearing. The parties participated in mediation but were unable to reach a settlement. The parties then appeared before Administrative Law Judge ("ALJ") Lisa James-Beavers. Defendants argued before the ALJ that Alloway had not proven that it offered C.Q. a "free, appropriate public education" ("FAPE") "because it failed to develop an IEP that set forth the educational program it intend[ed] to provide for him [at SCSS]." Opinion ("Op."), at 18, Docket No. 23-3. Defendants alleged that the District committed both procedural and substantive violations of IDEA. Op., at 18. After three days of testimony and one day of oral argument, on October 3, 2012, Judge James-Beavers issued her decision, finding that the District had denied C.Q. a FAPE "for making a predetermined placement and failing to develop an IEP to justify the out-of-district placement at Salem County and the services that C.Q. will be provided." Op. at 21. The ALJ's conclusion rested solely on procedural grounds. The ALJ held: "[o]n its face, the March 2012 IEP denies C.Q. FAPE." Id . The ALJ noted that her "decision may be postponing the inevitable in light of the testimony of the District's witnesses, [but] the District must employ the proper procedure to remove a student from his regular education program and place him out-of-district." Op. at 21.
As for the ALJ's findings of fact, Judge James-Beavers found the following:
The Alloway School District (District) consists of 438 students in grades kindergarten to eighth grade, approximately forty of whom are classified. Janis Gansert is the Principal and Child Study Team (CST) Supervisor. Ms. Gansert has twenty-eight years in the field of education, but is not certified in the field of special education. She supervises the special education teachers and attends IEP meetings. In her prior positions, she taught French and Spanish. C.Q. has attended school in the District since he was in pre-kindergarten. However, he was briefly educated at St. John of God when the District was not able to handle his needs. He was first classified as communication impaired, but is now classified as multiply disabled due to dyspraxia, motor issues and communication impairments. C.Q. has been observed spitting, hitting and making noises, including screaming sometimes up to five minutes. His ability to communicate orally is very limited.
According to Janis Gansert, in first grade, the District's attempts at academic inclusion of C.Q. did not work, but he was with non-disabled peers for recess, lunch and other non-academic activities. In second grade, the differences between him and the nondisabled students began widening and he was limited to being with only his special education teacher. In third grade, he had two teachers for academic subjects, one in the morning and one in the afternoon. C.Q. was included in specials for short periods of time. Ms. Gansert testified that the noises and problem behavior made his inclusion difficult. The District added an instructional aide to help him, but the behavior became even harder to control. C.Q. had additional problems with toileting, pulling his pants down, and pulling up teachers' shirts. There were 113 incidents written up in the fourth grade alone.... The incidents were all related to his disability, so he was not disciplined. In addition, the gap between his abilities and those of his peers grew wider. At the end of the 2011-2012 year, C.Q. spent most of his instructional time with his two teachers. It is very difficult for them to provide C.Q. with academic instruction because of the frequent behaviors previously mentioned. The District has employed behavioral consultants, contracted for teacher training by the behavioral consultants, hired an instructional aide and hired a special education teacher with C.Q. in mind. It sought parental input at all times and welcomed the reports from the parents' private providers. His behavior had an impact on other students in that his conduct disrupts the classroom. The foregoing was undisputed and therefore FOUND as FACT.
Op. at 2-3. The ALJ made no other findings of fact or any credibility determinations.
On November 2, 2012, Alloway filed the instant Complaint. The District alleges that the ALJ erred (1) by placing C.Q. in an in-district program and not SCSS; and (2) by failing to apply the proper standard in determining whether the District provided a FAPE, discussed infra. See Complaint, Docket No. 1.
On October 15, 2013, Alloway filed a motion for summary judgment, and on January 8, 2014, C.Q. and R.Q. filed a crossmotion for summary judgment. On February 20, 2014, this Court heard oral argument. For the reasons that follow, this Court finds that the ALJ erred when she held that the District's procedural violations constituted a denial of FAPE. First, the record does not support the ALJ's factual finding that Alloway committed procedural violations under IDEA. Second, even assuming the existence of such procedural violation resulting from the inadequacy of the IEP, there was no evidence that such violation resulted in substantive harm, i.e., the loss of educational benefits to C.Q. or the inability of C.Q.'s parents to participate in the IEP process. As such, Alloway did not deny C.Q. a FAPE in violation of IDEA.
A. Standard of Review
The standard of review under which this Court considers an appeal of a state administrative decision under the IDEA "differs from that governing the typical review of summary judgment." Heather S. by Kathy S. v. State of Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997). Section 1415(i)(2)(B) of the IDEA provides that district courts "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B). When there is no new evidence presented to the district court, as in this case, the motion for summary judgment is the procedural vehicle for deciding the case on the basis of the administrative record. Heather S. by Kathy S. v. State of Wisconsin, 125 F.3d 1045, 1052.
IDEA directs the district court to "conduct a modified de novo review, giving due weight' to the underlying administrative proceedings." C.H. v. Cape Henlopen School District, 606 F.3d 59, 65 (3d Cir. 2010)(citing S.H. v. State Operated Sch. Dist. Of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)). Factual findings from the administrative proceedings are to be considered prima facie correct. Id . See also Ridley School District v. M.R., 680 F.3d 260, 268 (3d Cir. 2012)(stating that if a renewing court fails to adhere to the factual findings, it must explain why). "[P]recedent makes it clear that [t]he issue of whether an IEP is appropriate is a question of fact.'" P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir. 2009) (quoting Carlisle Area School v. Scott P., 62 F.3d 520, 526 (3d Cir. 1995)). Findings of fact with respect to the appropriateness of the IEP are, therefore, reviewed for clear error. Carlisle, 62 F.3d at 526. Unlike the administrative law judge's factual findings, her determinations of law are not entitled to special deference. Id . at 528, n.3.
The purpose of IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education (FAPE') that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living." 20 U.S.C. § 1400(d)(1)(A). IDEA requires that states receiving federal ...