J.T., ON HER OWN BEHALF, ON BEHALF OF HER MINOR CHILD, A.T., AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellants,
DUMONT PUBLIC SCHOOLS, THE DUMONT PUBLIC SCHOOLS BOARD OF EDUCATION, EMANUELE TRIGGIANO, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE DUMONT PUBLIC SCHOOLS, AND PAUL BARBATO, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF SPECIAL SERVICES FOR THE DUMONT PUBLIC SCHOOLS, Defendants-Respondents
Argued April 1, 2014.
Approved for Publication November 24, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-139-12.
John D. Rue argued the cause for appellant ( Law Offices of John Rue, attorneys; Maryam Jazini Dorcheh ( White & Case ), Jack E. Pace, ( White & Case ) of the New York bar, admitted pro hac vice, and Peter E. Wilhelm ( White & Case ) of the New York bar, admitted pro hac vice, on the brief).
Eric L. Harrison argued the cause for respondents ( Methfessel & Werbel, attorneys; Mr. Harrison and Boris Shapiro, on the brief).
Ruth Deale Lowenkron argued the cause for amici curiae Council of Parent Attorneys and Advocates, Disability Rights New Jersey, Education Law Center, New Jersey Special Education Practitioners, Statewide Parent Advocacy Network, and the Special Education Clinic of Rutgers University - Newark ( Education Law Center, attorneys; Ms. Lowenkron, on the brief).
Before MESSANO, HAYDEN,
and LISA Judges.
[438 N.J.Super. 248] HAYDEN, J.A.D.
The issue before us is whether one component of an appropriate special education placement violates the Law Against Discrimination's (LAD), N.J.S.A. 10:5-1 to -42, prohibition against discrimination due to a disability. Plaintiff J.T., on behalf of herself, her minor son A.T., and all Dumont students similarly situated, appeals from the Chancery Division order granting summary judgment [438 N.J.Super. 249] in favor of defendants. Plaintiffs allege that defendants failed to accommodate the putative class members' disabilities in violation of the LAD by refusing to provide the special education services that the special needs students require in their neighborhood schools. Defendants are the Dumont school district, the Board of Education, the district superintendent, and the director of special services. Because plaintiffs did not demonstrate they were deprived of a benefit due to a disability and thus failed to make a prima facie showing of disability discrimination under the LAD, we affirm.
The record reveals that J.T. and her minor son A.T. resided in Dumont, a town of about two square miles. The school district of Dumont has four elementary schools: Selzer, Grant, Honiss, and Lincoln. In both the 2008-2009 and 2009-2010 school years, about 180 students attended kindergarten within the district. The school district's policy provided that generally children were to attend their neighborhood schools. An exception to the policy was when the child's Individualized Education Plan (IEP) required special education services that were provided in a different school.
Beginning in the 2008-2009 school year, the district offered an inclusion kindergarten class in addition to a self-contained kindergarten class. The self-contained classroom had only children whose needs, according to their IEPs, warranted a full-time special education teacher. The inclusion classroom, on the other hand, had both general education and special education students who were taught the regular curriculum by a full-time general education teacher with the part-time assistance of a special education [438 N.J.Super. 250] teacher. The amount of time that the special education teacher spent in the inclusion classroom varied according to the combined requirements of the children's IEPs. Both the inclusion and self-contained classes were located in the same school building each year.
In each of the 2008-2009 and 2009-2010 school years, four special needs children were placed in the inclusion kindergarten classroom as required by their IEPs. In the 2010-2011 school year, only one student with disabilities was in the inclusion class. Each year during this same period, depending on their individual educational needs as determined by their IEPs, several special education children were placed in the self-contained kindergarten classroom, in out-of-district placements, or in regular kindergartens in their neighborhood schools because they needed only support services, not special education teachers, to carry out their IEPs.
When A.T. was three years old, he was diagnosed with childhood autism, a pervasive developmental disorder. In the 2008-2009 school year, pursuant to his IEP, A.T. attended preschool in the district's inclusion classroom in Selzer, his neighborhood school, for half the day and spent the remainder of the day in an out-of-district self-contained program.
In May 2009, the district personnel and J.T. met to discuss A.T.'s IEP for his upcoming kindergarten year. J.T. and the district agreed that A.T. needed some special education services. The district personnel proposed moving him from a self-contained class to the district's inclusion class, to be held in Grant. The inclusion class was taught by a regular education teacher who followed a regular education curriculum. The class also had fewer [438 N.J.Super. 251] students than a regular education kindergarten class and provided services according to each special education student's IEP with the assistance of a part-time special education teacher.
In contrast, J.T. wanted A.T. to attend a general education classroom at his home school, Selzer, with the supports provided in that classroom. The district personnel did not think this option met A.T.'s special needs; rather, they reasoned that A.T. needed the integrated services, smaller class size, and in-class special education teacher to enable A.T. to retain and generalize information in order to meet the goal of readying him for a regular education classroom for the next year. Although J.T. did not agree, the final IEP designated A.T.'s educational placement as the inclusion kindergarten class at Grant.
In June 2009, J.T. filed a due process petition with the New Jersey Department of Education challenging the appropriateness of the IEP's inclusion placement at Grant rather than a regular education placement at Selzer. In September 2009, A.T. began attending the inclusion kindergarten class at Grant. Shortly thereafter, on September 28, 2009, plaintiffs filed a class action complaint in federal court alleging violations of (1) the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. § § 1400-1485, based on the district's failure to educate children in the least restrictive environment, (2) Section 504 of the Rehabilitation Act (RA), 29 U.S.C.A. § 794, due to discrimination against class members, and (3) the LAD for failing to accommodate class members in their neighborhood school. In November 2009, plaintiffs withdrew their due process petition.
While the federal litigation was pending, A.T. completed his kindergarten year in
the inclusion class. The parties do not dispute that A.T. benefitted educationally, emotionally, and socially from the inclusion placement. For his first grade year, the parents and district personnel agreed that it was appropriate to place him in the regular education classroom in Selzer with some special education services.
[438 N.J.Super. 252] After completion of discovery in federal court, both sides moved for summary judgment. The district court granted summary judgment in favor of defendants on the IDEA and RA claims, finding a lack of subject matter jurisdiction because there was no legally cognizable injury and plaintiffs failed to exhaust administrative remedies. The court noted that " plaintiffs are also not claiming that A.T. suffered a deprivation of educational benefits. Thus, Plaintiffs have not demonstrated either 'a loss of educational opportunity for the student,' or a serious deprivation of the parents' 'participation rights,' or a 'deprivation of educational benefits . . . .'" J.T. v. Dumont Pub. Schs., No. 09-4969 (MAH), at *34-35 (D.N.J. Mar. 28, 2012) (internal citations omitted).
In finding that plaintiffs failed to establish a concrete and particularized harm, the court reasoned:
Plaintiffs may not establish their standing based solely on the argument that Dumont committed a procedural violation by failing to consider whether the exact same services should be provided in a child's neighborhood school. Crucially, Plaintiffs have failed to identify, or they have abandoned, assertions that Dumont's policy resulted in the loss of an educational opportunity, ...