United States District Court, D. New Jersey
K.N. and J.N., on behalf of J.N., Plaintiffs,
GLOUCESTER CITY BOARD OF EDUCATION, Defendant.
CATHERINE MERINO REISMAN REISMAN CAROLLA GRAN & ZUBA LLP
Attorney for Plaintiffs K.N. and J.N, on behalf of J.N.
E.J. GORMAN PARKER MCCAY PA Attorney for Defendant Gloucester
City Board of Education.
L. HILLMAN, U.S.D.J.
case concerns the appeal of a decision of an administrative
law judge (“ALJ”) finding no violations of
federal and state anti-discrimination laws in a school
district's provision of services for an autistic child,
J.N, in an after-school program (“ASP”).
Presently before the Court is Plaintiffs' Motion for
Judgment on the Administrative Record (“Motion for
Judgment”). The Court will grant Plaintiffs' Motion
for Judgment, in part, and will order supplemental briefing
on the issue of remedies.
Court takes its facts from the parties' statements of
material facts. This Court will note disputes where relevant.
was a resident within the area served by Defendant Gloucester
City Board of Education (the “District”). During
the 2013-2014 and 2014-2015 school years, J.N. attended an
elementary autism program at Mary Ethel Costello School
(“Mary Ethel”). Jennifer Williams, a school
social worker, was J.N.'s case manager and at one point,
a one-to-one aide in the ASP. She was a daily presence in
J.N.'s classroom during the 2013-2014 school year.
Kristen Brennan, a special education teacher, taught J.N.
since 2013. Anita Dalton-Haggerty (“Haggerty”)
was J.N.'s one-to-one aide from 2008 until at least 2016.
Nicholas Orsino is a classroom aide and was in J.N.'s
classroom for at least three years.
District ran an ASP during the 2013-2014 and 2014-2015 school
year through a grant from the 21st Century Community Learning
Center Program (the “21st Century Grant”). During
the 2013-2014 school year (when J.N. was in third grade),
J.N. was bussed from Mary Ethel to Cold Springs Elementary
School (“Cold Springs”) for the ASP. During the
2014-2015 school year (when J.N. was in fourth grade), J.N.
attended the ASP at Mary Ethel and was not
usually ran from approximately 3:00 or 3:15 PM to 6 PM.
According to Plaintiffs, the ASP was “designed to
address the education[al], recreational, social, cultural,
emotional, and physical needs of  students” and
included academic support, “sports, yoga, kickboxing,
theater activities, cooking, science activities, jewelry
making, arts & crafts, and team-building
activities.” (Pls.' SOMF ¶ 6.) The classrooms
were inclusive, containing both general and special education
students. Approximately 100-150 total students were a part of
the ASP during the relevant times.
A general day at the ASP would include the following:
These students would come in, they would have [a] snack and a
little bit of free time. The students would then work on
their homework, having 20 minutes of free reading, silent
reading, and then typically they would either have group
activities within the classroom setting or on Fridays they
may go to the gym or watch a movie.
(Tr. 9/11/2015 at 68:13-19.)
it seems to be of most relevance to this case, the Court will
break down J.N.'s attendance at the ASP in fall 2013,
spring 2014, and fall 2014 and what behavioral issues
occurred at the ASP and during the school day at those times.
The program ended after spring 2015 because the District did
not receive the 21st Century Grant that provided funding for
the ASP. J.N. attended a different ASP and an extended school
year program (the “ESY Program”) from July to
December 2015 (with one-to-one support and access to a group
aide) and from January 2016 to present (with two-to-one
support) at parental expense. J.N. also attended the ASP in
spring 2013 with a trained, one-to-one aide.
discussed supra, during fall 2013, J.N. attended the
ASP and was bussed from Mary Ethel to Cold Springs. Before
starting the ASP, K.N. spoke with Williams and
“expressed concerns” about ensuring J.N.'s
ASP aide was appropriately trained. (Pls.' SOMF ¶
10.) J.N. was provided with a one-to-one aide for the ASP,
Jane Heitman. During this time in the ASP, J.N.
“exhibited behavioral problems, aggression,
self-injurious behavior and tantrums.” (Pls.' SOMF
¶ 11.) Multiple times a week, J.N.'s behavioral
problems were so serious that K.N. would be called and asked
to pick him up early from the ASP. J.N.'s behavior also
deteriorated during the school day. (Tr. 1/19/2016 at
did not observe J.N.'s behavior at the ASP during this
time period, but was able to observe J.N.'s behavior
during the school day when she visited his classroom. It
appears that J.N.'s behaviors were stable when he began
the ASP during fall 2013. Plaintiffs assert his behavior -
during the school day -deteriorated after leaving the ASP but
before starting again in January. But that is not borne out
by the record. According to Williams, there was an uptick in
behavioral issues midway through and at the end of the second
marking period which coincided with J.N.'s January return
to the ASP - with the additional staffing discussed,
infra. (Tr. 1/19/2016 at 76:17-77:3, 78:17-20,
October 2, 2013, K.N. again reached out to Williams, via
email, and stated she thought Heitman needed both training
and support from a special education teacher. (Pls.' Mot.
for J., Ex. 8.) Specifically, K.N. noted J.N. was successful
the previous spring when J.N. had a trained and supported
one-to-one aide. (Pls.' Mot. for J., Ex. 8.) Heitman
resigned in October 2013, according to the parties, because
she felt she could not properly maintain J.N.'s behavior.
(Def.'s SOMF ¶ 29.) As a result, J.N. was unable to
attend the ASP starting in October 2013 until a new
replacement could be found.
Heitman resigned, the District and Plaintiffs discussed an
alternative arrangement to allow J.N. to continue attending
the ASP. K.N. requested trained, one-to-one support for J.N.
in the ASP. The District agreed to provide J.N. with a
special education teacher and two aides, with one aide to be
removed after six weeks. According to the District, this
arrangement was made to ensure the safety of staff and
special education teacher was Maria Maiorano and the aides
were Williams, the previously mentioned school social worker,
and Karina Pennoc. Williams began in January and was faded
out by the middle of February.
Williams's time with J.N., he still exhibited aggressive
behaviors, self-injurious behaviors, and
perseverations at the ASP. His aggressive behaviors were
limited to pinching; Williams does not recall any successful
bites. According to Williams, during this time period, J.N.
was sometimes picked up after homework and silent reading
time, before social interactions began between the students.
As a result of this, and the amount of aides and teachers
that supervised J.N., J.N. did not receive much social
interaction with other students. Williams also testified that
it was difficult to get J.N. onto and off the bus. (Tr.
9/11/2015 at 82:5-83:11.) Williams did, however, note that
J.N.'s behavior issues, which increased in the fall of
2013, leveled off into late-winter 2013 and spring 2014. (Tr.
1/19/2016 at 31:23-32:1, 81:23-82:17.) Williams, when
questioned about the J.N.'s behaviors stated that she
“still saw behaviors in [the ASP], but due to the
amount of staff members we were able to - to
maintain him.” (Tr. 1/19/2016 at 29:16-24
beginning of the 2014-2015 school year, J.N.'s one-to-one
aide in the ASP was Susan Marinelli. As stated supra,
J.N. was not bussed, but instead transferred classrooms
within Mary Ethel. Williams and Brennan created a timeline
around the time J.N. was in the ASP and noted increased
anxiety and behavior issues in both the ASP and during the
school day in October 2014. (Tr. 1/19/2016 at 40:12-23.) As
of October 28, 2014, when Marinelli resigned, J.N. did not
attend the ASP. According to Williams, Marinelli
“resigned from the [ASP] due to multiple injuries
sustained from J.[N.]” (Tr. 1/19/2016 at 40:24-41:1.)
In November 2014, J.N.'s behavior issues culminated in
two successful bites on two separate staff members, Orsino
and Rose Fitzpatrick, a speech therapist for the District.
(Tr. 1/19/2016 at 41:8-13.) Brennan stated that when J.N.
attended the ASP with Marinelli in fall 2014, his time in the
ASP “was not successful.” (Tr. 1/19/2016 at
187:24-188:2.) Lauren Bermudez, a paraprofessional who also
worked in the ASP during fall 2014 (not with J.N.), stated
that Marinelli told her that “J.N. was overwhelming her
and was too much for her.” (Pl.'s Mot. for J., Ex.
District and Plaintiffs ultimately did not agree on whether
to allow J.N. to continue to attend the ASP. The District
stated that it would not allow J.N. back into the ASP until
the behavior issues he was exhibiting at the time were
stabilized. Plaintiffs insisted that J.N. could attend as
long as he was given the support he received in spring 2014.
The District refused, only offering a one-to-one aide without
the support of a special education teacher. As stated
supra, the ASP was discontinued at the end of the
2014-2015 school year for lack of funding. It appears that
during this entire time period, even though J.N. was
experiencing behavioral issues both in the classroom and in
the ASP, J.N. continued to progress towards his goals during
the school day.
Plaintiffs filed a Petition for Due Process
(“Petition”) with the New Jersey Office of
Special Education Programs on January 22, 2015. The Petition
listed four counts: (1) violation of Individuals with
Disabilities Education Act (“IDEA”) for refusal
to add the ASP to J.N.'s IEP; (2) violation of IDEA for
pre-determining that the J.N.'s IEP would not include the
ASP; (3) Americans with Disabilities Act (“ADA”)
and Section 504 of the Rehabilitation Act (“Section
504”) violations for limiting or denying J.N.
participation in the ASP; and (4) interference claim under
the ADA for denying J.N. benefits, here the ASP, to which he
was entitled. Plaintiffs requested declaratory, compensatory,
and injunctive relief as well as attorney's fees.
administrative hearing was held on September 11, 2015,
January 19, 2016, and April 18, 2016 before ALJ Susan M.
Scarola. Witnesses who provided services to J.N. during the
time periods at-issue were examined by the parties. On
September 8, 2017, the ALJ issued a written opinion. In it,
the ALJ made specific findings of fact and conclusions of law
- which will be discussed as relevant infra. The
conclusions of law can be split into two separate categories.
On the issue of whether a free and appropriate public
education (“FAPE”) was provided to J.N., the ALJ
concluded it had been. On the issue of whether there were ADA
or Section 504 violations, the ALJ concluded that J.N. had
been provided access to the ASP with proper supports in
filed a complaint in this Court on October 6, 2017.
Essentially, the complaint requests this Court to review the
decision of the ALJ on only a subset of the issues presented
to the ALJ. Plaintiffs do not appeal the decision insofar as
it decided the dispute under IDEA and held that J.N. had
received FAPE. Instead, the sole focus of Plaintiffs'
appeal concerns anti-discrimination laws - specifically
Section 504, Title II of the ADA, and the corresponding New
Jersey Law Against Discrimination (“NJLAD”)
filed a Motion for Judgment on July 27, 2018. It has been
fully briefed by the parties and is ripe for adjudication.
Subject Matter Jurisdiction
Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. §§ 1331 and 1367.
Motion for Judgment on the Administrative Record
technically framed before the Court as a motion for summary
judgment, this is an appeal of the ALJ's ruling in the
underlying administrative proceedings. This case presents a
somewhat peculiar issue concerning the standard of review.
Plaintiffs explain that because IDEA violations were
initially asserted, administrative exhaustion was required
for both the IDEA and non-IDEA claims under 20 U.S.C. §
1415(1). (Pls.' Mot. for J. 1.) So, although the claims
now before the Court would not typically be the subject of an
appeal - as they are not necessarily subject to an
administrative exhaustion requirement when brought standing
alone - they are presently before the Court in that
in an IDEA case, the Court would apply a modified de novo
standard of review to the factual findings made by an ALJ.
E.I.H. v. Fair Lawn Bd. of Educ., 747 Fed.Appx. 68,
71 (3d Cir. 2018). Under that standard, a district court
would be required to give “due weight” to the
factual findings of an ALJ, and, if the district court
departs from the ALJ's factual findings, it must explain
its reasons for doing so. Id. (citing S.H. v.
State-Operated Sch. Dist. of City of Newark, 336 F.3d
260, 270 (3d Cir. 2003)). Although the “due
weight” standard is not explicitly stated in the IDEA
statutory scheme, it does arise out of the Supreme
Court's interpretation of it. See Carlisle Area Sch.
v. Scott P. by & through Bess P., 62 F.3d 520, 527
(3d Cir. 1995), cert. denied, 517 U.S. 1135 (1996)
(citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206
(1982)). Thus, it does not necessarily apply to claims under
Section 504 or the ADA.
where the issue arises in the instant case. Plaintiffs have
only appealed the Section 504 and ADA claims that were heard
before the ALJ. The Third Circuit has yet to determine
whether, in this particular factual scenario, the modified de
novo or de novo standard of review applies. T.F. v. Fox
Chapel Area Sch. Dist., 589 Fed.Appx. 594, 598 (3d Cir.
2014). Thus, this Court will apply a de novo standard of
review to the facts. This seems appropriate in this case
because the claims at issue here were only brought before the
ALJ because of the requirement to exhaust the IDEA claims.
Moreover, the modified de novo standard stems from an
interpretation of IDEA, not from any interpretation of
Section 504 or the ADA.
any set of facts, legal determinations must be reviewed de
novo. A.D.L. v. Cinnaminson Twp. Bd. of Educ., 975
F.Supp.2d 459, 464 (D.N.J. 2013); W. Windsor-Plainsboro
Reg'l Sch. Dist., Bd. Of Educ. v. M.F. & M.F.,
No. Civ. A. 09-4326, 2011 U.S. Dist. LEXIS 21827, at *22
(D.N.J. March 4, 2011) (citing Carlisle Area Sch.,
62 F.3d at 528). Accordingly, the Court will review both
legal and factual determinations made by the ALJ de novo.
Motion for Judgment on the Administrative Record
set forth several factual findings and legal conclusions from
the ALJ's opinion that they assert are erroneous. The
Court will examine the factual findings first. Once the
factual issues have been decided, the Court will examine the
legal conclusions challenged by Plaintiffs. These issues will
be decided under the de novo standard explained
supra. Before it does so, the Court will first
determine whether the laws at issue are applicable to this
Whether Federal and State Anti-Discrimination Law Applies
to the ASP
this Court considers a threshold matter: whether Section 504,
the ADA, or the NJLAD apply to the ASP. Plaintiffs assert it
does and it appears the District does not dispute that
assertion. For the sake of completeness - and to better put
in context the errors cited by Plaintiffs in the ALJ's
opinion -this Court will consider whether each of the laws
cited supra apply. The Court will address each in
Section 504 states:
No otherwise qualified individual with a disability in the
United States, as defined in section 705(20) of this title,
shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity
receiving Federal financial assistance . . . .
29 U.S.C. § 794. By its plain text, Section 504 applies
to a federally-funded ASP provided by a New Jersey public
Title II of the ADA states that:
no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any
42 U.S.C. § 12132. By its plain text, it is clear that
the ADA applies to a federally-funded ASP provided by a New
Jersey public school.
All persons within the jurisdiction of this state shall be
entitled to the full and equal accommodations, advantages,
facilities and privileges of any places of public
accommodation, resort or amusement, subject only to the
conditions and ...