J.T. v. Dumont Public Schools, 042613 FED3, 12-2241

Docket Nº:12-2241
Opinion Judge:SCIRICA, Circuit Judge.
Party Name:J.T., on her own behalf, on behalf of her minor child, A.T. and on behalf of all others similarly situation, Appellant v. DUMONT PUBLIC SCHOOLS; THE BOARD OF EDUCATION OF THE DUMONT PUBLIC SCHOOLS; EMANUELE TRIGGIANO; PAUL BARBATO
Attorney:Clifford F. Blair, Esq. Jack E. Pace, III, Esq. Peter E. Wilhelm, Esq. (ARGUED) White & Case. Counsel for Appellant. Eric L. Harrison, Esq. (ARGUED) Methfessel & Werbel. Counsel for Appellees. Ruth Lowenkron, Esq. Education Law Center Counsel for Amicus Curiae Council of Parent Attorneys and Advo...
Judge Panel:Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.
Case Date:April 26, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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J.T., on her own behalf, on behalf of her minor child, A.T. and on behalf of all others similarly situation, Appellant

v.

DUMONT PUBLIC SCHOOLS; THE BOARD OF EDUCATION OF THE DUMONT PUBLIC SCHOOLS; EMANUELE TRIGGIANO; PAUL BARBATO

No. 12-2241

United States Court of Appeals, Third Circuit

April 26, 2013

NOT PRECEDENTIAL

Amended pursuant to the Clerk's Order dated 6/4/2012

Argued Pursuant to Third Circuit LAR 34.1(a) January 7, 2013

On Appeal from the United States District Court for the District of New Jersey D.C. Civil No. 2-09-cv-04969 Honorable Michael A. Hammer

Clifford F. Blair, Esq. Jack E. Pace, III, Esq. Peter E. Wilhelm, Esq. (ARGUED) White & Case. Counsel for Appellant.

Eric L. Harrison, Esq. (ARGUED) Methfessel & Werbel. Counsel for Appellees.

Ruth Lowenkron, Esq. Education Law Center Counsel for Amicus Curiae Council of Parent Attorneys and Advocates, Education Law Center, New Jersey Special Education Practitioners, Statewide Parent Advocacy Network, Special Education Clinic of Rutgers University Newark, and the Arc of New Jersey.

Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.

OPINION

SCIRICA, Circuit Judge.

In this putative class action asserting claims under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, plaintiffs appeal from the grant of summary judgment for lack of standing and failure to exhaust administrative remedies. We will affirm.

I.

The Dumont school district, which covers less than two square miles in northern New Jersey, contains four public elementary schools: Grant School, Honiss School, Lincoln School, and Selzer School. Since 2008-2009, the school district has offered one kindergarten "inclusion class, " composed both of students who need special education and those who do not, under New Jersey regulations implementing IDEA. See N.J. Admin. Code § 6A:14-4.6(i). In the inclusion class, all students are taught the general education curriculum. See id. ("The primary instructional responsibility for the student in an [inclusion class] shall be the general education teacher unless otherwise specified in the student's IEP [i.e., individualized education program]."). The students who need special education participate in an in-class resource program, which consists of individual instruction and support from an in-class special education teacher. See id. ("In an in-class resource program, the student shall be provided modifications to the instructional strategies or testing procedures or other specialized instruction to access the general education curriculum in accordance with the student's IEP. . . . An in-class resource program shall be provided in the student's general education class at the same time as the rest of the class.").

In 2008-2009, the inclusion class was held at Lincoln School and contained four of the school district's eight kindergartners with special education needs and twelve kindergartners without such needs. In 2009-2010, the inclusion class was held at Grant School and contained four of the school district's seventeen kindergartners with special education needs and thirteen kindergartners without such needs. In 2010-2011, the class, again held at Grant School, contained one of the school district's eight kindergartners with special education needs and sixteen kindergartners without such needs. New Jersey regulations allow inclusion classes to contain as many as eight students with special education needs. Id. § 6A:14-4.6(n). The other kindergartners with special education needs were placed in self-contained classrooms1 in or out of the school district or in regular classrooms, depending on their individual educational needs.

A.

J.T. is the mother of A.T., an autistic boy. In 2008-2009, A.T. spent part of the school day in a preschool inclusion class at his local neighborhood school, Selzer School, which is located less than a half-mile from his home, and the rest of the school day in an out-of-school district self-contained classroom.

On May 21, 2009, the child study team, 2 J.T., and Dr. Paul Barbato, who is the Dumont school district's Director of Special Services, convened to prepare an IEP for A.T.'s kindergarten year, as stipulated under IDEA. The child study team first considered educating A.T. at Selzer School, with or without supplemental aids and services, but after further evaluation, including discussion with J.T., decided this option would not meet A.T.'s individual educational needs. The child study team then determined that placing A.T. in the kindergarten inclusion class would best meet his needs. As noted, in the 2009-2010 school year, the only kindergarten inclusion class in the two-square-mile school district was located at Grant School. The child study team addressed J.T.'s questions about the inclusion class, explaining that the integrated services, small class size, and in-class special education teacher were important to enable A.T. to retain and generalize information, and further that his placement in the class would be with the expectation that he would transition back to Selzer School for first grade. The child study team also made clear that the general education curriculum taught to all students in the inclusion class would be the same as in a regular kindergarten class.

On June 26, 2009, J.T. filed a due process petition with the New Jersey Department of Education objecting to A.T.'s placement in the inclusion class because it was not a general education class and was not located at A.T.'s nearest school (Selzer School). J.T. also contended the Dumont school district had determined A.T.'s placement based on an alleged general rule that no student with special education needs would be placed at Selzer School. The petition was transferred to the Office of Administrative Law.

During the spring and summer of 2009, J.T. continued to communicate with Dr. Barbato about A.T.'s kindergarten placement. On August 21, 2009, J.T. wrote to Dr. Barbato by email: "I do want to withdraw [A.T.]'s petition. I think [A.T.] belongs in [a] general ed[ucation class], but I am satisfied with revising the modifications and related services and I believe that you feel good about the [inclusion class] program and placement at Grant." In September 2009, J.T. expressed some misgivings about A.T.'s placement in the inclusion class because she wished to have C.T., A.T.'s sibling, placed in the inclusion class but also desired to keep the siblings in separate classes, and again requested A.T.'s placement at Selzer School. Later that month, Dr. Barbato offered to place A.T. in a regular class at Selzer School multiple times, but J.T. did not accept the offers. A.T. was placed in the kindergarten inclusion class at Grant School, located less than two miles from his home.

B.

On September 28, 2009, J.T. filed a class action complaint under IDEA and § 504 of the Rehabilitation Act. 3 On November 17, 2009, J.T. withdrew her due process petition. On April 16, 2010, J.T. filed an Amended Class Action Complaint, on behalf of all kindergartners (and their parents or caregivers) who reside in the town of Dumont and require special education services, seeking declaratory and injunctive relief, including a proposed declaration that defendants "consider placing each kindergartner who requires special education services in regular classrooms in the school they would otherwise attend if not requiring special education services, " and a proposed order that defendants "educate Class members, wherever possible, in regular classrooms, " meaning classrooms "that reflect[] the natural proportion" in the district of children requiring special education and those who do not and "are located in the [Class members'] neighborhood school." Meanwhile, A.T. made significant progress in the kindergarten inclusion class at Grant School, where he stayed throughout his kindergarten year, and returned to Selzer School for first grade.

Defendants moved for summary judgment, contending plaintiffs did not have standing because they failed to allege a legally cognizable injury and, alternatively, failed to exhaust their IDEA administrative remedies. The District Court granted summary judgment on both grounds. It found plaintiffs' allegation of a purely procedural violation failed to provide standing under IDEA or the Rehabilitation Act, and to the extent plaintiffs alleged a substantive violation, they failed to exhaust their IDEA administrative remedies before bringing their claim in federal court...

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