M.A. v. Jersey City Board of Education, 112414 FED3, 14-1684

Docket Nº:14-1684
Opinion Judge:SHWARTZ, Circuit Judge
Judge Panel:Before: CHAGARES, HARDIMAN, and SHWARTZ, Circuit Judges.
Case Date:November 24, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

M.A.; E.M., Appellants



No. 14-1684

United States Court of Appeals, Third Circuit

November 24, 2014


Submitted Pursuant to Third Circuit L.A.R. 34.1(a) November 21, 2014

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. Action No. 2-13-cv-06946) District Judge: Honorable William J. Martini

Before: CHAGARES, HARDIMAN, and SHWARTZ, Circuit Judges.


SHWARTZ, Circuit Judge

M.A. is a student with autism who receives special education and related services. His parents appeal the District Court's order affirming the state administrative agency's ("ALJ's") determination that the Jersey City Board of Education's ("District's") proposed placement for M.A. in a public school provided a free, appropriate public education ("FAPE"), dismissing M.A.'s parents' retaliation claim, and denying their motion to amend. For the reasons that follow, we will affirm.


In September 2009, the District placed M.A. at Somerset Hills Learning Institute ("SHLI"), a private school that offers an intensive program based on applied behavior analysis ("ABA")1 for children with autism. App. 120, 169, 1430, 1431-37, 1441-42, 1458. On June 5, 2012, after providing notice to M.A.'s parents, App. 1285, and rescheduling to accommodate their schedule, App. 1942, the District convened a meeting to discuss M.A.'s individual education plan ("IEP"). App. 170, 175, 1584. M.A.'s father as well as District and SHLI officials attended the meeting. App. 170, 175, 1584, 2353. At the meeting, Dr. Kevin Brothers, Director of SHLI, reported that M.A.'s stereotypy2had been substantially reduced and that he had made good progress in other areas, including language and reading comprehension. App. 6, 120, 170, 2363-64, 2367, 2371-72, 2387, 2402. He concluded that M.A. no longer required the intensive services he was receiving at SHLI and would benefit from a less restrictive setting where he could learn with peers. App. 6, 120-21, 170, 2402, 2409-10. Based on Brothers' opinion, the District recommended changing M.A.'s placement to an in-district, special education classroom for autistic children. App. 2413, 2425-26. This recommendation was incorporated into M.A.'s IEP ("2012 IEP"). App. 1592-93, 2425-26.

M.A.'s parents opposed the transfer and filed a due process petition alleging that the 2012 IEP was procedurally and substantively deficient under the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the Rehabilitation Act ("RA"), and New Jersey's special education laws. App. 121, 170, 178-82. The petition claimed that the District failed to provide M.A.'s parents with adequate notice and opportunity to participate in M.A.'s placement decision and that M.A. was not ready to transition to a less restrictive environment.3 App. 180-81.

Meanwhile, on September 19, 2012, the District invited M.A.'s parents to observe the special education classroom that had been selected as a potential placement. App. 171. Then, by letter dated September 20, 2012, the District assigned M.A. to a specific classroom effective October 9, 2012.4 App. 121, 1614. On October 22, 2012, another IEP meeting was held and a transition plan was added to the 2012 IEP. App. 121, 1618-36. On October 25, 2012, M.A.'s father observed M.A.'s assigned classroom. App. 121, 171, 1811.

M.A.'s parents filed a motion for summary decision on their procedural claim that they were not provided notice of the placement. App. 166, 1189-90. The ALJ ruled that any notice defect lacked "substantive impact" because the IEP informed M.A.'s parents that "M.A. would be placed in a special education classroom for autistic children, " "specific classrooms were later identified with opportunities for the parents to observe, " and, as a result, "there was no significant obstacle to [M.A.'s parents'] participation." App. 175-76.

The ALJ then conducted a due process hearing on the substantive claims, at which various witnesses testified. App. 183, 352, 482, 540, 792, 1007, 1079. Brothers testified for the District as an expert, opining that based on ABA data and his observations regarding M.A.'s progress, SHLI was no longer an appropriate placement for M.A. App. 136, 550, 557. He explained that M.A. needed a full-day classroom that offers both small group instruction and systematic integration with typical peers that SHLI could not provide.5 App. 136. He testified that although M.A. needs an individualized motivational system and independent activity schedule, neither was incompatible with the instructional method the District employed. App. 7, 567-70.

M.A.'s case manager testified about the District's autism program, explaining that classes have no greater than a three-to-one student-to-staff ratio with a maximum enrollment of six students and that students have opportunities to interact with general education students for certain class periods.6 App. 122, 2311.

M.A.'s parents' expert, Dr. Erik A. Mayville, App. 804, 823, 1898, testified that...

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