B.K. v. Toms River Bd. of Educ.
| Decision Date | 30 March 1998 |
| Docket Number | No. Civ.A. 97-1429(MLC).,Civ.A. 97-1429(MLC). |
| Citation | 998 F.Supp. 462 |
| Parties | B.K., Individually and as Guardian Ad Litem of D.K., Plaintiff, v. TOMS RIVER BOARD OF EDUCATION, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Rebecca K. Spar, Jennifer L. Scully, Cole, Schotz, Meisel, Forman & Leonard, Hackensack, NJ, for plaintiff.
Stephen K. Foran, Gilmore & Monahan, P.A., Toms River, NJ, for defendant.
This matter comes before the Court on cross-motions for summary judgment by plaintiff, B.K. and defendant, Toms River Board of Education ("Toms River" or "the Board") pursuant to Federal Rule of Civil Procedure 56. Plaintiff seeks attorneys' fees, expert fees and other costs under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(e)(4)(B), as amended, 20 U.S.C. § 1415(i)(3)(B) (Supp. 1997).1 For the reasons expressed in this Memorandum Opinion, plaintiff's motion is denied without prejudice and defendant's motion is granted in part and denied in part without prejudice.
D.K., son of plaintiff, B.K., was born on December 26, 1982. D.K. suffers from cerebral palsy and is classified as multiply handicapped. (Certif. of John Gluck in Supp. of Def.'s Mot. for Summ.J. ¶ 3 ("Gluck Certif.")); Certif. of B.K. in Supp. of Mot. for Summ.J., Ex. A (IEP dated Jan. 25, 1995). Due to his disabling conditions, D.K. is wheelchair bound and connected to a spinal stimulator; he requires adult care for all of his basic needs. (Id.)
D.K. first came to the Toms River Regional School District ("the school district" or "the district") on October 20, 1986 at age three. (Gluck Certif. ¶ 4.) At the request of B.K., D.K. remained at the United Cerebral Palsy School in Brick, New Jersey ("UCP of Brick"), where D.K. was attending school at that time. (Id.) D.K. remained at UCP of Brick until plaintiff requested that he be placed at the Jackson Regional Day School ("Jackson Regional"). (Gluck Certif. ¶ 8.) Jackson Regional Day School is a school for disabled children. The school district approved D.K.'s attendance at Jackson for the 1990-91 school year. (Gluck Certif. ¶ 8.) D.K. continued at Jackson Regional for the 1991-92 school year, and the school district provided, inter alia, occupational, physical and speech therapy for the child, as well as a full-time aide. (Id. ¶ 9.) During the 1993-94 school year, the school district introduced "some mainstreaming" into D.K.'s schedule. (Id. ¶ 10.) More specifically, the district approved special transportation for D.K. to attend the Ridgeway Elementary School for one hour every Tuesday for discussion on social studies and science topics. (Id.)
At the April 26, 1994 IEP (Individualized Education Program) conference, B.K. demanded full inclusion for D.K. for the 1994-95 school year in the fourth grade at the Walnut Street School ("Walnut Street"). Walnut Street was plaintiff's local school. (Id., Ex. A (IEP Annual Review Info.).) The school district's initial reaction to plaintiff's request is not evident from the record.
After the initial April 1994 IEP conference, plaintiff requested a second IEP conference to discuss her desire of including D.K. in his local district school by September 1994. (Id.) That second IEP conference was held on June 13, 1994, and attended by plaintiff, staff from Jackson Regional and Walnut Street, and the school district's child-study team. (Id.) Members of the child-study team as well as the staff from Jackson Regional and Walnut Street indicated at that time that they felt that D.K. should remain at Jackson Regional. Further, Theodore W. Cordes, the child-study team supervisor, offered a multiple-handicapped class at Silver Bay School ("Silver Bay") with mainstreaming. (Gluck Certif. ¶ 12.) Plaintiff resisted the child-study team's offer to place B.K. at Silver Bay, and reiterated her desire for full inclusion at Walnut Street. (Id., Ex. C (Ltr. from Theodore W. Cordes, Child-Study Team Supervisor to Mr. John Gluck, Dir. of Special Servs. (June 14, 1994)).) She also requested that the school district provide the following for her son: (1) supportive services which would include a full-time teacher's aide; (2) speech/language instruction daily; (3) physical therapy three times per week; (4) occupational therapy two times per week; (5) consultant services to in-service staff in minispeak and the use and programming of the "liberator", a computer device with various icons which may be used for communication; and (6) a full time computer for D.K.'s use. (Id., Ex. C.) The record does not reveal the school district's immediate reaction to B.K.'s demands.
On August 4, 1994, B.K. requested mediation. (Id., Ex. D.) The request for mediation specifically states that plaintiff requests "full inclusion in the neighborhood school that [D.K.] would attend if he were not handicapped." (Id.)
On August 8, 1994, B.K. met with Cordes, members of the child-study team, other staff and John Gluck, the Director of Handicapped Services for the Board of Education. (Id. ¶ 14.) Gluck states in his certification that he suggested this meeting prior to B.K.'s filing for mediation.2 (Id.) Plaintiff requested the following at that meeting: (1) full inclusion at Walnut Street; (2) speech therapy; (3) cross training in the use of the "Liberator"; (4) recorded books; (5) full-time paraprofessional aide; (6) a speech consultant; (7) extra time for D .K. to complete his work; (8) physical therapy; and (9) in-home tutoring. Gluck states that at that time, the school district experts, and those from Jackson Regional "believed that a special education class would best meet [D.K.'s] physical and educational needs." Plaintiff, however, did not agree to such placement at that time. (Id. ¶ 14.)
Mediation was scheduled for August 18, 1994, but was adjourned until September 26, 1994. On August 18, 1994, a mediation settlement was reached between the parties. The parties agreed to the following: (1) D.K. was permitted to attend the Walnut Street School for the 1994-95 school year; (2) another IEP conference was to be convened to develop a program for implementation at the Walnut Street School; (3) both parties were to pursue independent child-study team evaluations to complete D.K.'s triennial evaluation. (Id., Ex. F.)
On or about August 24, 1994, plaintiff met with the school district again to conduct an IEP meeting. At that meeting, the school district stated that while it agreed to place D.K. at Walnut Street, the child would have to be put in segregated classes with other disabled students until a final decision as to D.K.'s permanent placement was made in the due process hearing.3 (B.K.Certif. ¶ 7.) Plaintiff testified in her certification that "D.K.'s placement in a self-contained class in his neighborhood school with no opportunity for inclusion with non-disabled peers was not acceptable to D.K." (Id. ¶ 8.) Thus, it does not appear from the record that the parties agreed to mainstreaming in the interim period before his final placement was determined.
Plaintiff brought D.K. to Walnut Street School for the first day of classes on September 1, 1994. On September 7, 1994, plaintiff was approached by the school nurse who stated that plaintiff would "have to take D.K. home until the school `was ready for [D.K.].'" (B.K.Certif. ¶ 10.) Gluck states in his certification that he "informed B.K. not to bring D.K. to school until the district was set up for his health care needs, which date was tentatively scheduled for September 26, 1994." (Gluck Certif. ¶ 19.) On September 12, 1994, plaintiff received a letter from the school stating that D.K. should receive home instruction until the school was ready for him. (B.K.Certif., Ex. A (Ltr. dated Sept. 12, 1994).)
The parties contest the order of the following events, and the record presently before the Court does not resolve the dispute. Gluck contends that "despite the lack of a new IEP, and a current updated independent evaluation, D.K. began attending a PI [sic] special education class at the Walnut Street School on September 22, 1994." (Gluck Certif. ¶ 22.) He also certifies that by September 26, 1994, the school district "started" several programs and procedures in preparation for D.K. to remain at Walnut Street. (Id.) The record does not reveal, however, the time-frame within which these changes were actually fully implemented, although it does not appear that all of them were completed as of September 22, 1994. (See id.)
In sharp contrast to defendant's recitation of the chronology of events, plaintiff flatly denies that D.K. returned to Walnut Street School prior to September 27, 1994. (B.K.Certif.¶ 12.) Plaintiff instead claims that she brought her child to Walnut Street on September 27, and that the school district informed her that it was not ready for D.K. to return to school. (Id.; see also Pl.'s 12 Stmt. of Facts ¶ 17 ().) Plaintiff claims that as a result of the school's failure to allow D.K. to return to school on September 27, plaintiff applied for emergency relief to enforce the interim mediation agreement and allow D.K. to attend school in the resource room until a final decision was made concerning D.K.'s permanent inclusion into classes with non-disabled students. (B.K.Certif. ¶ 13; Gluck Certif., Ex. L (Request for Due Process).) By letter dated October 3, 1994, defendant confirmed with plaintiff's attorney that B.K. withdrew her emergency relief request, as D.K. was attending Walnut Street School as of that date. (Id. ¶ 24 & Ex. N.) The record does not reveal, however, the exact date that D.K. began attendance at the Walnut Street School.
After D.K. was allowed to attend Walnut Street School, several problems occurred. In September and October 1994, the school ...
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