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K.N. v. Gloucester City Board of Education

United States District Court, D. New Jersey

March 29, 2019

K.N. and J.N., on behalf of J.N., Plaintiffs,
v.
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.

          BRETT E.J. GORMAN PARKER MCCAY PA Attorney for Defendant Gloucester City Board of Education.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This 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.

         BACKGROUND

         This Court takes its facts from the parties' statements of material facts. This Court will note disputes where relevant.

         J.N. 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.

         The 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 bussed.[1]

         The ASP 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.)

         Because 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.

         Fall 2013

         As 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.”[2] (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.[3] J.N.'s behavior also deteriorated during the school day. (Tr. 1/19/2016 at 19:14-20:1.)

         Williams 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, 100:10-101:13.)

         On 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.

         Spring 2014

         After 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 students.[4]

         The 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.

         During Williams's time with J.N., he still exhibited aggressive behaviors, self-injurious behaviors, and perseverations[5] 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 (emphasis added).)

         Fall 2014

         At the beginning of the 2014-2015 school year, J.N.'s one-to-one aide in the ASP was Susan Marinelli.[6] 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. 9 14.)

         The 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.

         Thereafter, 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.

         An 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 place.[7]

         Plaintiff 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”) provisions.

         Plaintiffs filed a Motion for Judgment on July 27, 2018. It has been fully briefed by the parties and is ripe for adjudication.

         ANALYSIS

         A. Subject Matter Jurisdiction

         This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367.

         B. Motion for Judgment on the Administrative Record Standard

         Although 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 procedural posture.

         Normally, 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.

         This is 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.

         Under 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.

         C. Motion for Judgment on the Administrative Record

         Plaintiffs 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 case.

         a. Whether Federal and State Anti-Discrimination Law Applies to the ASP

         First, 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 turn.

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 school.

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 such entity.

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.

NJLAD states:
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 ...

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