Baer v. Klagholz

• Citation: 771 A.2d 603,339 N.J. Super. 168
• Parties: Wende BAER, Patty Bieth, Colleen Dooley, Dianne Vasquez, New Jersey Protection & Advocacy, Inc., Statewide Parent Advocacy Network, Jersey City Special Education Parents Council, and Alliance for the Betterment of Citizens With Disabilities, Appellants, v. Leo KLAGHOLZ, Commissioner, Department of Education, and State Board of Education, Respondents.
• Decision Date: 04 April 2001
• Court: New Jersey Superior Court

771 A.2d 603

339 N.J. Super. 168

Wende BAER, Patty Bieth, Colleen Dooley, Dianne Vasquez, New Jersey Protection & Advocacy, Inc., Statewide Parent Advocacy Network, Jersey City Special Education Parents Council, and Alliance for the Betterment of Citizens With Disabilities, Appellants, v. Leo KLAGHOLZ, Commissioner, Department of Education, and State Board of Education, Respondents.

Superior Court of New Jersey, Appellate Division.

Argued December 12, 2000.

Decided April 4, 2001.

Elizabeth A. Athos, Hackensack, Ellen M. Boylan and Rebecca K. Spar, Jersey City, argued the cause for appellants (Education Law Center, Cole, Schotz, Meisel, Forman & Leonard, New Jersey Protection & Advocacy, Inc. and Rutgers Special Education Clinic, attorneys; Ms. Athos, Ms. Boylan, Ms. Spar, Linda D. Headley and Mary F. Harnett, of counsel, and with Ruth Deale Lowenkron, Wendy F. Klein and James T. Kim, on the joint brief).

Michelle L. Miller, Deputy Attorney General, argued the cause for respondents (John J. Farmer, Jr., Attorney General, attorney; Nancy Kaplen, Assistant Attorney General, of counsel; John K. Worthington, Arlene Goldfus Lutz and Terri A. Cutrera, Deputy Attorneys General, on the brief in A-7451-97T1; Ms. Lutz, on the brief in A-6273-99T1).

Zazzali, Fagella & Nowak, Newark, attorneys for amicus curiae New Jersey Education Association (Richard A. Friedman and Aileen M. O'Driscoll, on the brief).

Before Judges STERN, COLLESTER and FALL. The opinion of the court was delivered by FALL, J.A.D

These appeals, consolidated for opinion purposes, challenge numerous special education administrative regulations promulgated by respondents, Leo Klagholz,¹ Commissioner of the New Jersey Department of Education (Commissioner) and adopted by the State Board of Education (Board), pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400 to 1487.

Appellants, Wende Baer, Patty Bieth, Colleen Dooley, and Dianne Vasquez, are parents of children with neurologically-based disabilities who receive special education and related services. Appellants, New Jersey Protection & Advocacy, Inc., Statewide Parent Advocacy Network, Jersey City Special Education Parents Council, and Alliance For The Betterment of Citizens With Disabilities, are organizations representing the interests of children with disabilities, and their parents.

Table of Acronyms

CBVI New Jersey Department of Human Services, Commission for the Blind and Visually Impaired

CI communication impaired

CST child study team

DDD New Jersey Division of Developmental Disabilities

DOE New Jersey Department of Education

DVRS New Jersey Department of Labor, Division of Vocational Rehabilitation Services

ESY extended school year

FAPE free appropriate public education

IDEA Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400 to 1487

IEP individualized education program

LEA local educational agency

LRE least restrictive environment

SEA state educational agency

SLD specific learning disability

USDOE United States Department of Education

I. Procedural History of Challenges

On August 25, 1994, Governor Christine Todd Whitman issued Executive Order No. 22 directing the Department of Education (Department or DOE) to "complete a comprehensive and thorough review of all current administrative regulations" and to refer to the Board "[a]ll regulations which are not necessary or which promote inefficiency or are overly prescriptive." 26 N.J.R. 3783(a) (Sept. 19, 1994). On November 2, 1994, the Governor issued Executive Order No. 27, which required all State agencies to limit regulation of federal and state programs and to justify any decision to adopt an administrative rule for a program established under federal law or state statute that exceeds the requirements of an existing federal standard. 26 N.J.R. 4723(a) (Dec. 5, 1994).

On August 7, 1996, the Commissioner directed a policy memorandum to members of the Board, addressing the need for amendment to the then-existing special education rules, N.J.A.C. 6:28-1.1 to -12.1. The Board considered discussion-level drafts of proposed amendments, with comments and responses, and made them available to the public at the Board meetings of November 5, 1997 and December 3, 1997.

The Board held public hearings on December 17, 1997, January 27, 28, and 29, 1998, and accepted written comments through January 30, 1998. The Board received comments on the proposed special education regulations from over six hundred individuals and organizations. On March 4, 1998, the Commissioner directed a memorandum to members of the Board, summarizing the proposed new regulations and stating, in pertinent part:

This comprehensive review was conducted to improve special education programs by assuring a balance of flexibility and safeguards. An optimal level of regulation assures that the focus of special education is on instruction and the focus of the instruction is in the core curriculum content standards so that students with disabilities are afforded high quality instruction in a challenging curriculum designed to achieve high standards. Students with disabilities will also be included in the accountability system by participating in statewide assessments. Through such participation, the department may review individual progress and program effectiveness as it does for all students. Finally, the review was conducted to comply with the Individuals with Disabilities Act, 20 U.S.C. §§ 1400 et seq., which was reauthorized on June 4, 1997.

....

The basis of the proposed new rules was presented as a policy statement to the State Board of Education on August 7, 1996. The major elements of the policy statement provided for: flexibility in the functioning of the child study team, changes in the evaluation process, elimination of the categorical classification system, a reduction in the number of special class types, establishment of class size limits, inclusion of all students with disabilities in statewide assessment, and incorporation of the separate rules regarding the plan to revise special education. In addition, clarification of existing rules regarding consent, notice, meetings, discipline, approved clinics and agencies, case manager, home instruction, services in nonpublic schools, and elimination of the outcomes-based innovative project were proposed.

....

As noted above, the Individuals with Disabilities Act was recently reauthorized. There were many changes to the Act and, as a result, the regulations were further modified to reflect these new provisions. The federal requirements for discipline have been incorporated by reference. The United States Department of Education (USDOE) has indicated that they will adopt regulations in the spring of 1998 to implement the act. It is highly likely that this will again require some revisions to these rules.

The Board then revised some areas of the pre-proposal and published the proposed regulations on April 6, 1998 for additional comment. 30 N.J.R. 1219(b) (Apr. 6, 1998). The Board held a public hearing on April 15, 1998. The Commissioner sent a memorandum to the Board dated June 3, 1998, summarizing and analyzing the proposed regulations. The Board adopted the proposed regulations at its June 3, 1998 meeting, and the regulations became effective on July 6, 1998.

The challenged regulations, codified at N.J.A.C. 6A:14-1.1 to -10.1, superseded and replaced the earlier special education regulations, N.J.A.C. 6:28-1.1 to -12.1. On August 20, 1998, appellants filed a notice of appeal, challenging several provisions contained in the promulgated regulations, and raising fifty-five separate issues in their case information statement. This appeal was docketed as A-7451-97T1.

On August 3, 1998, the Board published proposed amendments to certain sections of the new code. 30 N.J.R. 2852(a) (Aug. 3, 1998). On October 7, 1998, the Board adopted the amendments and they became effective on November 2, 1998. 30 N.J.R. 3491(a) (Nov. 2, 1998). On December 16, 1998, appellants filed an amended notice of appeal, to include these rule amendments in their challenge.

On March 12, 1999, the USDOE adopted new regulations, codified at 34 C.F.R. Part 300, which became effective on May 11, 1999. 64 Fed.Reg. 12406 (Mar. 12, 1999). As a result of these revised federal regulations, the Commissioner sought to revise New Jersey's special education regulations to assure conformity, and proposed amendments for the Board to consider. On March 6, 2000, the Board issued proposed amendments to the regulations. 32 N.J.R. 755(a) (Mar. 6, 2000). On May 5, 2000, these amendments were adopted, effective June 5, 2000. 32 N.J.R. 2052(a) (June 5, 2000). Included in the publication of the adoption was a summary of comments from twelve different sources and responses thereto by the Board.

On July 14, 2000, appellants filed a motion with this court, seeking leave to file an amended notice of appeal to encompass challenges to the June 5, 2000 rule amendments adopted by the Board. On July 27, 2000, we entered an order directing that the proposed amended notice of appeal be treated and docketed as a new appeal, and be calendared back-to-back with A-7451-97T1. In accordance with that order, the amended notice of appeal was docketed as A-6273-99T1.

Since adoption of the June 5, 2000 amendments to the regulations resolved a number of issues raised in the original appeal, A-7451-97T1, appellants, at our request, by letter dated December 15, 2000, outlined those claims that have now been resolved by the new amendments, or withdrawn, and those regulations they continue to challenge. Our opinion will focus only on those regulations still challenged by appellants.

II. The Federal Requirements

"Although education is primarily a concern of state and local governments, the education of handicapped children is regulated by a complex scheme of federal and state statutes and administrative regulations." Lascari v. Board of Educ., ...