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S.W. v. Florham Park Board of Education

United States District Court, D. New Jersey

May 24, 2017

S.W. AND J.W. Individually and as Guardian ad litem of W.W., Plaintiff,
v.
FLORHAM PARK BOARD OF EDUCATION, Defendant.

          OPINION

          MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         This matter comes before the Court on cross-motions for summary judgment filed by Plaintiffs, S.W. and J.W., and Defendant, Florham Park Board of Education [D.E. 20-21].[1] The Court held oral argument on the motions on May 22, 2017. For the reasons set forth below, the Court will grant Plaintiffs' motion for summary judgment and deny Defendant's motion for summary judgment. The Court will remand this matter to the New Jersey Office of Special Education Programs for a new due process hearing.

         II. Background

         This matter involves a dispute under the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. § 1400, et seq. between Defendant Florham Park Board of Education (“Defendant” or “the Board”) and Plaintiffs S.W. and J.W. (“Plaintiffs” or “the parents”), who are the parents of their minor child W.W. The parents challenge the Board's proposed Individualized Education Plan (“IEP”) for the 2014-2015 school year (W.W.'s seventh grade year), alleging that the proposed IEP denied W.W. a free appropriate public education (“FAPE”).

         A. Factual History

         During the time of the events in Plaintiffs' Complaint, W.W. was a thirteen-year-old student in the Florham Park School District who was eligible for special education and related services, under the category of Communication Impaired. Compl. ¶ 5, D.E. 1; Plaintiffs' L. Civ. R. 56.1 Statement of Facts (“Pls.' Statement of Facts”), ¶ 1, D.E. 27; Defendant's Counter Statement of Material Facts (“Def.'s Counter Statement”), ¶ 1, D.E. 29-1. Defendant is a local education authority as defined by the IDEA. Pls.' Statement of Facts, ¶ 2, D.E. 27; Def.'s Counter Statement, ¶ 2, D.E. 29-1.

         Near the end of the 2013-2014 school year, as W.W. was completing sixth grade, a dispute arose between the parties over W.W.'s IEP for seventh grade. On July 22, 2014, Plaintiffs filed a due process petition with the New Jersey Department of Education's Office of Special Education Programs against the Florham Park Board of Education, which was transmitted to the Office of Administrative Law, State of New Jersey on August 21, 2014.[2]Plaintiffs' Statement of Facts, ¶ 3, D.E. 27; Def.'s Counter Statement, ¶ 3, D.E. 29-1. Plaintiffs contended that the IEP proposed by Defendant failed to provide W.W. with a FAPE. Additionally, Plaintiffs unilaterally placed W.W. at the Winston Preparatory School (“Winston”), a private school, and sought reimbursement from the Board. Compl. ¶ 6.

         B. Administrative Proceedings

         After Plaintiffs filed the due process petition, an Administrative Law Judge held hearings in the matter on May 5, 2015, May 18, 2015 and July 15, 2015. The Administrative Law Judge limited each party to three witnesses. Id. ¶ 4.

         At the conclusion of Defendant's case, but before Plaintiffs presented their own case, Plaintiffs moved for summary judgment, arguing that Defendant had failed to meet its burden of proof. Id. at ¶ 5. The Administrative Law Judge directed the parties to file briefs. Defendant opposed Plaintiffs' motion and cross-moved for summary judgment. Defendant's Motion for Summary Judgment, Oct. 14, 2016, D.E. 21, at 2. On May 27, 2015, Plaintiffs submitted their brief in support of their motion for summary judgment to the Administrative Law Judge. Pls.' Statement of Facts, ¶ 5. The parties agreed to continue with the hearing pending resolution of the summary judgment motions. Compl. ¶ 11. Plaintiff had the opportunity to present only one witness, Scott Bezsylko, who was the Executive Director of Winston. Id. Before Plaintiffs had the opportunity to present any other witnesses, the Administrative Law Judge issued a final decision in which she determined that the Board did not deny W.W. a FAPE. Defendant's Motion for Summary Judgment, Exhibit A to Certification of Counsel, D.E. 21-3.

         In addition to the joint exhibits and the Board's exhibits, the Administrative Law Judge considered the testimony of three witnesses offered by the Board: (1) Lauren Lee Erickson (“Erickson”), a certified school psychologist; (2) David Burrows (“Burrows”), a speech and language specialist; and (3) Lori-Jane Dolan (“Dolan”), a learning disability teacher consultant. Def.'s Motion for Summary Judgment, Exhibit A to Certification of Counsel, D.E. 21-3, at 2, 17, 25. All three witnesses were Florham Park School District employees. Id. After hearing testimony, the Administrative Law Judge agreed with Defendant's witnesses that the proposed IEP conferred on W.W. a meaningful educational benefit such that Defendant met its burden of providing W.W. with a FAPE. Id. at 49.

         The Administrative Law Judge first considered the testimony offered by Erickson. Erickson had been W.W.'s case manager, and testified as to W.W.'s progress and educational plan. Id. at 2. Erickson testified that she monitored W.W.'s progress periodically via consultations with teachers, classroom observations and review of report cards when necessary. Id. Here, the Administrative Law Judge was persuaded by Erickson's testimony that “based on W.W.'s Special Education Reports, his DRA scores, and his i-Ready scores, …W.W. was making meaningful progress in his program [in both his fifth and sixth grade years], ” and that the IEPs established for him were appropriate for him. Id. at 6, 32-32. The Administrative Law Judge also determined, based on Erickson's testimony, that both the 2012-2013 and 2013-2014 IEP indicated modifications to address W.W.'s memory and processing speed deficits. Id. at 33.

         The Administrative Law Judge then considered the testimony of Burrows, who was responsible for testing and treating students with speech and language disorders. Id. at 17. During W.W.'s fifth-grade year and at the beginning of his sixth-grade year, Burrows worked with W.W. Id. The Administrative Law Judge pointed to the testimony of Burrows in finding that W.W. had made articulation progress during his fifth-grade year, and noted that his parents declined to discontinue Burrows's services near the beginning of W.W.'s sixth-grade year. Id. at 33-24. Moreover, Burrows testified that he participated in the formulation of the 2014-2015 IEP, specifically by drafting the language goals. Burrows testified that when all language deficiencies could not be remedied at once, the most serious deficits were prioritized. Id. at 34. The Administrative Law Judge considered the report of plaintiff's expert, Dr. Couvadelli. But relying on Burrows's testimony, the Administrative Law Judge concluded that “the District can provide the necessary speech and language services to enable W.W. to access the curriculum, and receive a meaningful benefit.” Id.

         Finally, the Administrative Law Judge considered the testimony of Dolan, W.W.'s case manager for the 2014-2015 year. Id. In drafting the 2014-2015 IEP, Dolan reviewed W.W.'s prior IEPs, met with prior case managers, and consulted his entire file, including report cards, tests and assessments. Id. W.W.'s proposed 2014-2015 IEP would have placed him in resource rooms for math and language arts, but in a supportive instructional assistance classroom for social studies and science. Id. at 35. Dolan testified, and the Administrative Law Judge apparently accepted, that W.W.'s placement in the supportive instructional assistance classroom would have permitted W.W. to interact with his typically-developing peers, while learning the general education curriculum with support. Id. The Administrative Law Judge concluded that placement in resource rooms for math and language arts would have provided W.W. much needed “individualized assistance.” Id. Thus, the Administrative Law Judge concluded that “W.W.'s 2014-15 IEP was reasonably calculated to provide W.W. a meaningful educational benefit.” Id.

         Upon consideration of these three witnesses and the exhibits admitted, the Administrative Law Judge concluded that W.W. received a FAPE because his IEP for the 2014-2015 school year and educational setting were appropriate and provided him a meaningful educational benefit. Id. at 45. In her opinion, she stated:

[T]he District's witnesses amply established that W.W.'s placement in a supportive instructional assistance classroom for social studies and science was appropriate, because such placement was reasonably calculated to confer a meaningful educational benefit. I FIND that a supportive instructional assistance classroom provided an opportunity for W.W. to access the general education curriculum, with supports, in subjects that do not require strong reading and writing skills. The supportive instructional assistance classroom provided W.W. with an opportunity to interact with his typically developing peers, which provided linguistic role models, to further address his communication impairment.

Id.

         The Administrative Law Judge also found that the District, through its witnesses, provided ample assessments from which the District could conclude that W.W. was progressing. Id. For example, she determined that “the District's witnesses testified that they used a variety of measures to determine the most appropriate placement for W.W., including classroom observations, classroom assessments, i-Ready tests, previous assessments, and close, objective monitoring of W.W.'s progress in speech therapy.” Id. at 48. Finally, she determined that “the District witnesses testified that W.W. was able to access the general education curriculum, with supports, which was reflected in W.W.'s grades.” Id. Accordingly, the Administrative Law Judge concluded that the District, through credible witness testimony, had met its burden by a preponderance of the evidence “that the District offered W.W. a FAPE, which was reasonably calculated to confer a meaningful educational benefit.” Id. at 49.

         It bears noting that the Administrative Law Judge declined to consider the testimony of Plaintiffs' witness, Bezsylko. Defendant's Motion for Summary Judgment, Exhibit A to Certification of Counsel, D.E. 21-3, at 2, n. 1.

         C. Procedural History

         On November 2, 2015, Plaintiffs filed the instant Complaint, alleging the following two counts: (1) “the Administrative Law Judge erred in issuing a final decision when only an interlocutory decision was appropriate. Plaintiffs were denied their due process rights to present their case;” and (2) “Defendant failed to meet its burden of proving W.W. was offered a FAPE and therefore the Administrative Law Judge's decision should be reversed.” Compl. ¶¶ 15-17; 24.

         Defendant moved to dismiss Plaintiffs' Complaint and for a more definite statement on December 15, 2015. The District Court denied the motion by Letter Order on July 20, 2016. Letter Order, July 20, 2016, D.E. 14. In denying Defendant's motion, the Court concluded that Plaintiffs had adequately pleaded claims for relief by alleging that: (1) Plaintiffs were denied due process because they were unable to call witnesses and present evidence at the due process hearing, in violation of 20 U.S.C. ...


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