United States District Court, D. New Jersey
G.M. & M.C.M., on behalf of themselves and their minor sons, C.M. & D.M., Plaintiffs,
BRIGANTINE PUBLIC SCHOOLS, Defendants.
MEMORANDUM OPINION & ORDER
JOSEPH H. RODRIGUEZ, District Judge.
This matter is before the Court on Defendant Brigantine Public Schools' Motion to Dismiss . The Court has reviewed the submissions of the parties and heard oral argument on the motion on April 21, 2015. For the reasons set forth below, the motion will be denied.
Plaintiffs G.M. and M.C.M. are the parents of a disabled ten-year old son, C.M., who was enrolled at the Brigantine Elementary School within the Defendant School District. Essentially, Plaintiffs allege that Defendant discriminatorily retaliated against Plaintiffs and their sons for requesting that Defendant provide C.M. with a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 ("IDEA") and after (a) M.C.M. exercised her right to speak at public meetings of the Defendant's Board of Education and (b) Plaintiffs challenged the Board of Education in administrative legal proceedings. (Compl., ¶ 1.) Besides citing the IDEA, Plaintiffs assert violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 791, Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 ("ADA"), and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 ("NJLAD"). Plaintiffs contend, on the face of the Complaint, that they are not required to exhaust administrative remedies because they seek only compensatory damages and do not claim that the retaliation and discriminatory acts alleged had an adverse impact upon C.M.'s educational programming. (Compl., ¶ 4.) In an effort to comply with the applicable statutes of limitation, however, Plaintiffs simultaneously pursued claims in the New Jersey Office of Administrative Law. (Id.)
The facts as alleged in the Complaint are as follows. In October 2006, C.M. began attending Atlantic County Special Services School District ("ACSSSD") pursuant to an IEP written by Defendant. At the IEP meeting for this placement, and all subsequent IEP meetings, G.M. and M.C.M. requested that Defendant provide C.M. with a one-to-one aide for his pre-school programming. Defendant denied this request. (Compl., ¶ 13.)
In December 2006, C.M. dislocated his hip for the first time and was placed in a hip brace. (Compl., ¶ 14.) In May, 2010, then-Superintendent Dr. Robert Previti and District Child Study Team Supervisor Glick created a program within the Defendant District and invited C.M. to attend. G.M. and M.C.M. agreed, as C.M. had an approximately 90 minute bus ride to ACSSSD and had been in two bus accidents. (Compl., ¶ 15.) On May 6, 2011, C.M. underwent a procedure to correct his hip problem which required that he remain in a cast for eight weeks. (Compl., ¶ 16.) On January 14, 2012, C.M.'s hip again dislocated. M.C.M. made a request to Previti and Glick that the District provide C.M. a permanent one-to-one aide, given his tendency to suffer hip dislocation. (Compl., ¶ 17.) In response, the District offered a one-to-one aide for four to six weeks, the time C.M. was expected to be in his brace. (Compl., ¶ 18.)
On February 2, 2012, the members of C.M.'s Individualized Education Program team (the "IEP Team") met to discuss C.M.'s IEP. Special Education Advocate Susan Coll-Guedes attended with M.C.M. (Compl., ¶ 19.) At that meeting, M.C.M. requested a permanent one-to-one aide, but that request was denied. (Compl., ¶ 20.) On March 1, 2012, M.C.M. submitted a letter from C.M.'s family physician stating that C.M. requires a permanent one-to-one aide for medical reasons. In response, Glick stated that the school would need its doctor to approve the one-to-one aide. (Compl., ¶ 21.) On March 7, 2012, Defendant approved a permanent one-to-one aide for C.M. M.C.M. expressed her concern to CST Supervisor Glick that the aide provided was not physically capable of performing the duties required. (Compl., ¶ 22.)
On March 8, 2012, C.M., while in Brigantine Elementary, again dislocated his hip. (Compl., ¶ 23.) On March 22, 2012, M.C.M. notified the IEP Team that she would not waive her right under federal law to have all of C.M.'s treating therapists attend his IEP meeting, scheduled for April 24, 2012. (Compl., ¶ 24-25.) At that IEP meeting, M.C.M. requested additional speech therapy, additional occupational therapy, and a continuous school year for C.M.; these requests were denied. (Compl., ¶ 25.) On May 10, 2012, M.C.M. submitted a letter from C.M.'s family physician and a behavioral specialist requesting that C.M. be enrolled in a continuous school year. (Compl., ¶ 26.)
On May 15, 2012, M.C.M. attended a Board of Education meeting, with C.M. She introduced herself and C.M. to the Board and noted that she was considering filing a due process complaint. At that meeting, she discussed in detail her concerns regarding the inappropriate educational programming her son was receiving and C.M.'s needs. (Compl., ¶ 27.) On June 10, 2012, M.C.M. and G.M. filed for a due process hearing, and submitted a letter to the BOE listing specific requests for C.M. The due process complaint alleged that the Defendant District had failed to offer C.M. a FAPE. (Compl., ¶ 28.) On June 28, 2012, M.C.M. attended a Board meeting and provided Board members with a list of C.M.'s needs she hoped Defendant would address as a result of the due process filing. Previti stated at a BOE meeting that he felt there would be a resolution of the dispute between Defendant and Plaintiffs. (Compl., ¶ 29.) On July 19, 2012, the parties convened a resolution meeting. Defendant offered to enroll C.M. in a continuous school year and provide an additional 1/2-hour per week of speech and occupational therapy services. Defendant, however, refused to provide Applied Behavioral Analysis ("ABA") services. Dissatisfied with this result, M.C.M. contacted the New Jersey Department of Education, requesting mediation for the purpose of securing additional services for C.M. (Compl., ¶ 30.)
The last day of C.M.'s extended school year programming was July 20, 2012. (Compl., ¶ 37.) On Friday, July 27, 2012, M.C.M. received a letter from the New Jersey Department of Education providing a mediation date. On Monday, July 30, 2012 at 9 a.m., the New Jersey Department of Youth Family Services ("DYFS"), now called "Child Protection and Permanency, " a division of the State of New Jersey's Department of Children and Families, responsible for investigating allegations of child abuse and neglect, received a telephone call which reported:
a. C.M. had "cerebral palsy or something";
b. C.M. and D.M. were so filthy that the complainant had to bathe them;
c. C.M. had bloody and raw genitals;
d. C.M. and D.M. were locked in their rooms by ...