D.O. v. Jackson Township Board of Education, A-3783-19
| Decision Date | 19 July 2021 |
| Docket Number | A-3783-19 |
| Parties | D.O., individually, and on behalf of M.O., a minor child, Plaintiff-Appellant, v. JACKSON TOWNSHIP BOARD OF EDUCATION, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 3, 2021
On appeal from the Superior Court of New Jersey, Law Division Ocean County, Docket No. L-1738-16.
John Rue argued the cause for appellant (John Rue &Associates LLC, attorneys;
John Rue, Donald A. Soutar, and Kenneth R. Walk, on the briefs).
Katherine A. Gilfillan argued the cause for respondent (Schenck, Price, Smith &King, LLP, attorneys;
Katherine A. Gilfillan, of counsel and on the brief; John D. McCarthy, on the brief).
Before Judges Sabatino, Currier and DeAlmeida.
This matter arose as a dispute over efforts by a parent, appellant D.O., to obtain from respondent, Jackson Township Board of Education ("the District" or "defendant"), certain public school records concerning her disabled son, M.O. The parent requested the records in 2015, and from August 2015 through March 2016 the District provided a series of records to her. The District certified it turned over all of the then-existing records but the parent disagrees. She contends that some records are missing and surmises that other communications must have been documented and were not supplied.
Through administrative processes, the parent obtained from the District certain substantive educational services for her son. Nonetheless, she pursued litigation against the District in the Law Division, contending she was entitled to what is described as a "due process" hearing under 20 U.S.C. § 1415(f) concerning the sought-after alleged additional records. The Law Division rejected her claims, concluding that the applicable laws do not provide a right to such a stand-alone due process hearing in which the dispute solely concerns the turnover of school records. This appeal ensued.
For the reasons explained in this opinion, we affirm the trial court's dismissal of the parent's lawsuit. As a threshold matter, this records case appears to be moot, given the trial court's finding that the District supplied the parent with all of the requested records in its files.
Even assuming the case is not moot, or that an exception to the mootness limitation is warranted, we are unpersuaded that appellant has a right to a standalone due process hearing where there is no related substantive dispute pending about a deprivation of educational services. Among other things, we reject appellant's argument that dicta within footnote 6 of the Supreme Court's majority opinion in Fry v. Napoleon Community Schools, 580 U.S.____, 137 S.Ct. 743, 754 n.6 (2017), entitles her to such a due process hearing in this stand-alone setting. Appellant's remaining arguments likewise lack merit.
We need not detail comprehensively the lengthy and complicated background of this case. The parties are surely familiar with the procedural and factual history, and therefore we will condense it here.
Plaintiff-appellant is the mother of M.O., a minor who is eligible for special education services under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482. They reside in Jackson Township. The District is responsible for educating students who are domiciled in Jackson Township.
In July 2015, plaintiff filed a due process complaint with the New Jersey Department of Education ("NJDOE"). The complaint was directed to the Department's Office of Special Education Programs ("OSEP"), alleging that the District failed to provide M.O. with a free and appropriate public education (known as a "FAPE") as required by the IDEA. Although it is relevant for contextual purposes, this first due process complaint is not the subject of the instant appeal.
OSEP transmitted D.O.'s first due process complaint to the Office of Administrative Law ("OAL"), where the parties each moved for summary decision.
On September 2, 2016, an Administrative Law Judge ("ALJ") granted plaintiff's motion for summary decision, upon concluding that the District had failed to provide M.O. with a FAPE between March 6, 2013, and October 20, 2015. The ALJ further concluded that plaintiff was entitled to a $600 reimbursement for an independent psychiatric evaluation of M.O. as well as compensatory education for M.O. to restore him "to the educational level where he would have been but for the denial of FAPE."[1]
[(Emphasis omitted).]
Plaintiff's letter referenced the first due process complaint, asserting she needed the requested records in advance of the administrative hearing. In response, the District initially produced two sets of records on August 24 and August 25, 2015.
On September 9, 2015, plaintiff's attorney filed a second due process complaint with OSEP, alleging that the District failed to provide a complete copy of M.O.'s student records "as required by 34 C.F.R. 300.613," an IDEA regulation. She sought "access to a complete copy" of the records, as well as a certification from defendant confirming that it has produced a complete copy "as required by 34 C.F.R. 300.613" and "N.J.A.C. 6A:32.2-1 &[6A:32-]7.5," state regulations implementing the New Jersey Pupil Records Act ("NJPRA"), N.J.S.A. 18A:36-19. The second due process complaint reserved plaintiff's "right to seek attorneys' fees and costs incurred in litigating this action, pursuant to 20 U.S.C. § 1415 [IDEA]." OSEP transmitted the matter to the OAL.
The second due process complaint neither mentioned the pending first due process complaint, nor did it allege that the District had denied M.O. a FAPE. However, it did include plaintiff's July 13, 2015 records request letter as an exhibit and referenced it in the statement of facts.[2]
The District filed a "sufficiency challenge" to the second due process complaint with OSEP pursuant to N.J.A.C. 6A:14-2.7. That regulation requires requests for due process in this educational context to include the child's name, address, date of birth, school of attendance, relevant facts, the specific disputed issues, and what relief is being sought. N.J.A.C. 6A:14-2.7(c). The District sought dismissal of the second due process complaint because it "allege[d] only perceived failures by [the District] to supply student records" and "claims regarding the provision of copies of student records are not the proper subject of a due process hearing."
On September 15, 2015, ALJ Edward J. Delanoy, Jr. concluded that the second due process complaint was sufficient for the screening purposes of N.J.A.C. 6A:14-2.7(c). The ALJ explained that "[w]hile [the District] may be correct . . . that the . . . request to supply student records is not available through due process in a special education case, this is not a factor to be considered in a sufficiency challenge" but may be raised "in a summary decision motion brought during the pendency of the due process" proceedings. The matter was assigned to a different ALJ for further proceedings.
The following day, the District filed a motion to dismiss the second due process complaint, which plaintiff opposed.
On March 21, 2016, ALJ John S. Kennedy granted the District's motion to dismiss the second due process complaint, which the ALJ treated as a motion for summary decision under N.J.A.C. 1:1-12.5. The ALJ found as fact that it was "undisputed . . . that the sole issue raised in the [second due process complaint] is [the District's] alleged failure to provide [plaintiff] a copy of M.O.'s student records" and that "no issue of material fact exists that precludes summary decision." According to the ALJ, the only legal issue to be decided was "whether a due process hearing may be requested to obtain copies of student records."
ALJ Kennedy concluded that "[n]either N.J.A.C. 6A:14-2.7(a)," a state regulation implementing the IDEA, "nor 34 C.F.R. 300.507," a federal regulation implementing the IDEA, "provide that a demand for providing copies of student's records may be the subject of a due process hearing" and that the relief sought "is not appropriately addressed in a due process hearing." Although ALJ Kennedy acknowledged the pendency of the first due process complaint, which involved "a disagreement between the parties regarding M.O.'s special education placement," he concluded that the first due process complaint was "a separate due process petition not currently pending before" him.
In June 2016, plaintiff filed an Order to Show Cause and Complaint in the Law Division (the "Ocean County complaint") challenging the ALJ's dismissal of the second due process complaint. The Ocean County complaint alleged, among other things, that the court had subject matter jurisdiction "pursuant to 34 C.F.R. § 300.516(a)," an IDEA regulation, and that the District had violated plaintiff's rights under the IDEA, N.J.S.A. 18A:46-1 to -55, and related federal and state...
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