D.M. v. New Jersey Department of Education, 091015 FED3, 14-4044

Docket Nº:14-4044
Opinion Judge:FISHER, CIRCUIT JUDGE.
Party Name:D.M.; L. M., on behalf of E.M.; LEARNING CENTER FOR EXCEPTIONAL CHILDREN v. NEW JERSEY DEPARTMENT OF EDUCATION; LINDA CHAVEZ; PEGGY MCDONALD, Appellants
Attorney:Jennifer J. McGruther, Esq. ARGUED Office of Attorney General of New Jersey Department of Law & Public Safety Division of Law Richard J. Hughes Justice Complex Attorney for Appellants Vito A. Gagliardi, Jr., Esq. ARGUED Porzio, Bromberg & Newman Attorney for Appellees
Judge Panel:Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges. SHWARTZ, Circuit Judge, dissenting.
Case Date:September 10, 2015
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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D.M.; L. M., on behalf of E.M.; LEARNING CENTER FOR EXCEPTIONAL CHILDREN

v.

NEW JERSEY DEPARTMENT OF EDUCATION; LINDA CHAVEZ; PEGGY MCDONALD, Appellants

No. 14-4044

United States Court of Appeals, Third Circuit

September 10, 2015

Argued June 4, 2015

On Appeal from United States District Court for the District of New Jersey (D.N.J. No. 2-14-cv-04620) District Judge: Honorable Esther Salas

Jennifer J. McGruther, Esq. ARGUED Office of Attorney General of New Jersey Department of Law & Public Safety Division of Law Richard J. Hughes Justice Complex Attorney for Appellants

Vito A. Gagliardi, Jr., Esq. ARGUED Porzio, Bromberg & Newman Attorney for Appellees

Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.

OPINION

FISHER, CIRCUIT JUDGE.

E.M. is a student at the Learning Center for Exceptional Children ("LCEC"). LCEC is a private school for children with intellectual disabilities. E.M.'s individualized education program-her federally-mandated education plan created by her parents, teachers, and local public-school system-says that she should attend LCEC and integrated classes with students from Today's Learning Center ("TLC"). TLC is a private school for regular-education students that shares classroom space with LCEC. The New Jersey Department of Education ("the Department") asserts that it has not approved LCEC or TLC to teach integrated classes of regular-education students and students with disabilities. Therefore, the Department directed LCEC to confirm that it would not place its public-school students with disabilities in classrooms with private-school regular-education students. LCEC agreed under protest.

E.M.'s parents-D.M. and L.M.-on behalf of E.M. and LCEC sued the Department and two of its officials, challenging the Department's regulation of LCEC as arbitrary and capricious, and sought preliminary injunctive relief. The District Court granted E.M. a preliminary injunction under the so-called "stay-put" rule of the Individuals with Disabilities Education Act ("IDEA"). The injunction allowed her to attend classes with TLC's regular-education students during the pendency of the case. We will remand the case with the injunction intact for additional fact finding.

I. 1.

The Individuals with Disabilities Education Act imposes conditions on any State that accepts certain federal educational funding assistance. New Jersey accepts this assistance and is bound by those conditions.

Under IDEA, a State must provide a free appropriate public education to all students with intellectual disabilities. 20 U.S.C. § 1412(a)(1)(A).1 A free appropriate public education is, among other things, an education that is provided in conformity with an individualized education program for that child. Id. § 1401(9)(D). A State can provide a free appropriate public education to a child with disabilities by paying for that child to attend a private school if the State ensures that the private school meets the same standards that the State requires of public schools and if the private school accords with the child's individualized education program. Id. § 1412(a)(10)(B). The New Jersey Department of Education approves private-school programs to serve these public-school students with disabilities, but the approval process is for specific programs only and is not a general certification of the school. N.J. Admin. Code § 6A:14-7.1(a).

An individualized education program-frequently abbreviated as "IEP"-must be created and in effect for each child with disabilities by the beginning of each school year. 20 U.S.C. §§ 1412(a)(4), 1414(d)(2)(A). Each year, a child's IEP is developed by a team that includes the child's parents, at least one regular-education teacher, at least one special-education teacher, a representative of the local educational agency, and the child himself or herself, if appropriate. Id. § 1414(d)(1)(B). If needed to interpret evaluation results or to provide other expertise, additional individuals may participate in creating the IEP. Id. The IEP should state the child's present levels of achievement and performance, provide annual goals, and explain how progress will be measured. Id. § 1414(d)(1)(A)(i). The IEP should also state "the special education and related services and supplementary aids and services . . . to be provided to the child" and "the anticipated frequency, location, and duration of those services and modifications." Id. § 1414(d)(1)(A)(i)(IV), (VII). Once an IEP has been created, it may only be amended by the entire IEP team or by agreement between the parents and the local educational agency. Id. § 1414(d)(3)(F).

IDEA also requires that States provide a dispute resolution system should a parent or public agency dispute whether the child is receiving a free appropriate public education. Either party may seek mediation or present a complaint to an administrative law judge, who will then adjudicate the parties' disagreement. Id. § 1415(b)(6), (c)(2), (d), (e), (f). When parties go before an administrative law judge, the process is called a "due process hearing." Id. § 1415(f). Any party aggrieved by the ALJ's findings can administratively appeal. Id. § 1415(g). Any party still aggrieved after the administrative appeal may file a civil action in a state court of competent jurisdiction or in a federal district court. Id. § 1415(i)(2).

Importantly, IDEA requires that "during the pendency of any proceedings" the child "shall remain in the then-current educational placement" unless the parents and the state or local educational agency agree otherwise. Id. § 1415(j). This is commonly referred to as IDEA's "stay-put" rule.

2.

The Learning Center for Exceptional Children is a private school for students with disabilities. It opened in 1978. During the times relevant to this lawsuit, LCEC leased classroom space in a building in Clifton, New Jersey. Also sharing this space was a private school for regular-education students, Today's Learning Center. The principal of LCEC is also the principal of TLC.

LCEC has received authorization from the New Jersey Department of Education to educate public-school students with disabilities referred to LCEC by the students' local public-school systems into certain programs. LCEC received its most recent approval in 2011. In its application for this approval, LCEC listed one of the programs as "integration of disabled and non-disabled peers." App. at 25 (alteration omitted). The application, however, did not mention that LCEC students would attend integrated classes with TLC's students. The Department has never approved TLC to educate any public-school students with disabilities.

E.M. is a ten-year-old girl who most recently was in the fourth grade. Her local public-school system, Hoboken, classified her as "Multiply Disabled" and eligible to receive special education services. Beginning in January 2011, she has attended LCEC, as stated in her IEPs for each year. "LCEC was specifically selected as the out-of-district educational placement for E.M. due to her unique academic and social/emotional needs." App. at 22. For the 2014-15 school year, "[E.M.'s] IEP calls for her to [be] integrated with regular education students in a small classroom at TLC with a low student-to-teacher ratio." Id. She is also to receive a one-on-one, in-classroom assistant and other curricular modifications.

In December 2013, after an on-site inspection, the Department requested a "statement of assurance that non-public school students from TLC are not in class with public school students from LCEC." App. at 26. The Department subsequently denied LCEC's request to locate to a different building, stating that it did so because LCEC educated its public-school students with disabilities with TLC's regular education students. The Department also changed LCEC's approval status to "conditional approval, " which meant that LCEC could not enroll any new public school students. See N.J. Admin. Code § 6A:14-7.10(b)(1)(i). LCEC filed petitions for review of both decisions with the New Jersey Office of Administrative Law, which are still pending although a decision is expected shortly. In July 2014, LCEC assured the Department that it would not place its public-school students with disabilities in classrooms with TLC's regular-education students, despite the fact that some of its students' IEPs-such as E.M.'s-called for it. LCEC remains on conditional approval status.

3.

On July 23, 2014, LCEC and E.M., through her parents D.M. and L.M., sued the Department, as well as Linda Chavez and Peggy McDonald-two senior employees in the Department. LCEC sought injunctive and declaratory relief allowing LCEC to accept new students and to educate its public-school students with TLC's regular-education students. E.M. sought injunctive and declaratory relief prohibiting the Department from acting "in a manner that precludes LCEC from implementing the mainstreaming component of E.M.'s IEP." App. at 37.2 E.M. also sought her attorneys' fees in bringing the suit, as permitted by 20 U.S.C. § 1415(i)(3)(B).

After the District Court denied the plaintiffs' request for a temporary restraining order, the parties filed and briefed a motion for a preliminary injunction on an accelerated basis. When the briefing was complete, the District Court held a hearing. The District Court, finding that the plaintiffs' arguments had evolved, ordered supplemental briefing on the applicability of the "stay-put" rule to E.M.

After the supplemental briefing, the District Court granted a preliminary injunction to E.M. only. It held that E.M. did not need to first seek a "stay-put" order from the administrative process, that the Department was altering E.M.'s "educational placement" by preventing LCEC...

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