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B.G. v. Ocean City Board of Education

United States District Court, D. New Jersey, Camden Vicinage

September 26, 2014

B.G., Plaintiff,


JOEL SCHNEIDER, Magistrate Judge.

This matter is before the Court on the "Motion for Summary Judgment" [Doc. No. 11] filed by plaintiff B.G. The Court received a response in opposition from defendant Ocean City Board of Education ("Ocean City") [Doc. No. 13]. B.G. has also submitted a Reply. [Doc. No. 15]. Oral argument was held by telephone on September 23, 2014. Pursuant to 28 U.S.C. § 636(c), the parties consented to the jurisdiction of this Court to decide plaintiff's motion. [Doc. No. 8]. For the reasons to be discussed, B.G.'s motion is GRANTED to the extent the motion requests the Court to remand this matter for a due process hearing. The Court will Order plaintiff's dispute to be remanded to the New Jersey Office of Special Education Programs in order for B.G.'s due process complaint to be addressed in a manner consistent with the IDEA and N.J.A.C. § 6A14-2.7 ("Due Process Hearings"). To the extent plaintiff's motion asks the Court to address the merits of her due process complaint de novo, the request is DENIED. As discussed herein in detail, at this time the Court is not taking issue with the underlying decision. Instead, the Court finds that the procedural deficiencies discussed herein prejudiced plaintiff and remand is appropriate so that plaintiff's due process complaint can be fully vetted.


This matter concerns whether B.G., a former Ocean City School District special education student, was provided with a Free Appropriate Public Education ("FAPE") and transitional services in accordance with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and New Jersey law. B.G. appealed to this Court the Administrative Law Judge's June 3, 2013 Decision on Emergent Relief and Order which denied her application for emergent relief and petition for continued education, and ordered that Ocean City may graduate plaintiff. See June 3, 2013 Order, Pl.'s Ex. A. At all relevant times plaintiff represented herself in the referenced administrative law proceedings. Plaintiff is presently represented by counsel.

Plaintiff is a special needs student who, in the past three years, has been enrolled in three different schools, two of which were outside of the Ocean City school district. For the 2010-2011 school year, B.G. was enrolled in the Cape May County Special Services School District, which consisted of academic and vocational placement. Def.'s Br. at 6; see Transcript of May 31, 2013 Hearing ("Tr.") 82-24, Pl.'s Ex. G. At the conclusion of the 2010-2011 school year, the Cape May School District notified Ocean City that B.G. was noncompliant with its program and would not be eligible for placement the following year. Id.

With B.G. and her advocates' consent, Ocean City then placed B.G. in the Ocean City Extension Program for the 2011-2012 school year. Def.'s Br. at 5; Tr. 811-921. The program again consisted of academic and vocational placement. Id . According to Ocean City, B.G. was noncompliant with the program, "by poor attendance and a refusal to do assigned work." Def.'s Br. at 5. During the 2011-2012 school year, B.G. filed a petition asserting the same arguments considered in the instant matter, namely, that Ocean City did not provide B.G. with a FAPE and appropriate and necessary transitional services. Def.'s Br. at 5. Following mediation, Ocean City agreed to place B.G. in the Atlantic County Special Services School District (ACSS) for the 2012-2013 school year. Def.'s Br. at 6; Tr. 101-11. Citing plaintiff's poor attendance (51 days absent) and refusal to work, ACSS informed Ocean City that plaintiff would not be eligible for re-enrollment for the following school year. Def.'s Br. at 6; Tr. 1014-19. As a result, in April 2013, Ocean City notified B.G. that it planned to graduate her at the conclusion of the school year in accordance with her September 20, 2012 Individualized Education Plan ("IEP"), which permitted a June 2013 graduation. Def.'s Br. at 7; IEP at 15. B.G. subsequently notified the school that she was challenging the graduation. B.G. requested a due process hearing by letter on April 18, 2013 which stated that she did not feel ready to graduate and wished to continue learning vocational and job readiness skills. See April 18, 2013 Letter from B.G, Pl.'s Ex. D. She also asserted that she did not have an appropriate transition plan in her IEP. Pl.'s Ex. D at 1. Thereafter, on May 13, 2013, B.G. filed a pro se Request for Emergent Relief pursuant to N.J.A.C. 6A14-2.7(r) and (u). See Request for Emergent Relief, Pl.'s Ex. E. The emergent relief requested was a stay-put order to prevent graduation. Id.[1]

An emergent relief hearing was held on May 31, 2013 before the Honorable Brue J. Gorman, an Administrative Law Judge ("ALJ"), who issued his Opinion on June 3, 2013. See June 3, 2013 Order. At the May 31 hearing Ocean City argued that B.G. had sufficient credits to graduate and had declined to take advantage of the educational services offered to her. Tr. 11-16. Without notice to plaintiff, the ALJ heard testimony from plaintiff's case worker, Vicki Scheetz, at the hearing. Tr. 7-16. B.G. claimed at the hearing that her noncompliance with the ACSS program should be excused because of her medical illnesses and difficulty performing the work. Tr. 137-16. The ALJ's June 3, 2013 Order not only denied B.G.'s emergent relief petition, but also effectively decided the merits of the claims contained in B.G's due process complaint. See generally June 3, 2013 Order. The ALJ found that Ocean City should not be required to expend additional time, effort and money on B.G., that her request for continued education be denied, and that graduation in June 2013 was appropriate. Id. at 4.

B.G. requests that the Court order that she be permitted to attend one more year of school, or in the alternative, that the case be remanded to the ALJ for a full due process hearing. For the reasons to be discussed, the Court finds that no material facts are in dispute, summary judgment should be awarded to plaintiff, and remand is warranted.


1. Background on the IDEA

This action is brought in federal court pursuant to 20 U.S.C. § 1415(e)(2), which provides that an IDEA decision of a state educational agency may be appealed to a federal district court. Fuhrmann on Behalf of Fuhrmann v. E. Hanover Bd. of Educ. , 993 F.2d 1031, 1034 (3d Cir. 1993). As a general matter, the purpose of the 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). The IDEA requires that states receiving federal funds for education must provide a FAPE to every disabled child. See generally 20 U.S.C. § 1412.

The IDEA imposes certain requirements on a school district. First, the school must provide an "appropriate" education, that is, confer a meaningful education to a child with special needs. The core of that education is embodied in an Individualized Education Plan, commonly referred to as an IEP.[2] Second, the school must, to the maximum extent appropriate, educate the child in the least restrictive environment, commonly referred to as LRE. See Carlisle Area Sch. v. Scott P. By & Through Bess P. , 62 F.3d 520, 533-34 (3d Cir. 1995) (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley , 458 U.S. 176, 200 (1982)).

The Supreme Court has announced a two-part inquiry for determining a school district's liability for violations of the IDEA (1) has the school district complied with the procedures set forth in the IDEA and (2) has the school district fulfilled its obligation to provide the student with a FAPE. C.H. v. Cape Henlopen Sch. Dist. , 606 F.3d 59, 66 (3d Cir. 2010) (citing Rowley , 458 U.S. at 206-07). A procedural violation of the IDEA is not a per se denial of a FAPE. Id . Rather, "a school district's failure to comply with the procedural requirements of the Act will constitute a denial of a FAPE only if such violation causes substantive harm to the child or his parents." Id . (citation omitted).

When a parent or majority-aged student objects to the adequacy of the education provided, the construction of the IEP, or some related matter, the IDEA provides procedural recourse. It requires that a state provide "[a]n opportunity for any party to present a complaint... with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of [a FAPE] to such child.'" Winkelman ex rel Winkelman v. Parma City Sch. Dist. , 550 U.S. 516, 525 (2007) (quoting 20 U.S.C. § 1415(b)(6)). This takes the form of an administrative proceeding centered around an "impartial due process" hearing pursuant to 20 U.S.C. § 1415(f)(1) and N.J.A.C. § 6A14-2.7. D.C. v. Mount Olive Twp. Bd. of Educ., C.A. No. 12-5592 (KSH) 2014 WL 1293534, at *2 (D.N.J. Mar. 31, 2014); see also R.E. v. N.Y.C. Dep't of Educ. , 694 F.3d 167, 175 (2d Cir. 2012) (clarifying that a due process hearing is "a type of administrative challenge unrelated to the concept of constitutional due process"). After state proceedings are completed, "the IDEA permits an aggrieved party to bring a civil action in any court." S.H. v. Lower Merion Sch. Dist. , 729 F.3d 248, ...

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