M.A. v. Voorhees Township Board of Education, Civ. No. 01-2595 (JBS) (D. N.J. 5/29/2002)
| Decision Date | 29 May 2002 |
| Docket Number | Civ. No. 01-2595 (JBS) |
| Parties | M.A., a minor child, by his parents, G.A. and E.A., Plaintiff, v. VOORHEES TOWNSHIP BOARD OF EDUCATION, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Herbert D. Hinkle, Esquire, Law Offices of Herbert D. Hinkle, Lawrenceville, New Jersey, Attorney for Plaintiff.
Howard S. Mendelson, Esquire, Davis & Mendelson, LLC, Cherry Hill, New Jersey, Attorney for Defendant.
Plaintiff M.A. brought this action through his parents, G.A. and E.A.,1 against defendant Voorhees Township Board of Education ("Voorhees"), under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), as an appeal from the final administrative decision of the Honorable Bernard Goldberg, New Jersey Administrative Law Judge ("ALJ"), issued on May 1, 2001. Plaintiffs assert that the education M.A. is currently receiving at Osage Elementary ("Osage"), his neighborhood public school in Voorhees, is appropriate and sufficient, and that the 2000-2001 Individualized Education Plan ("IEP") created for M.A. and the decision of the ALJ below, which called for M.A., an autistic child, to be instructed at an out-of-district placement with a program for autistic children in order to obtain a free and appropriate public education ("FAPE") in the least restrictive environment ("LRE") were inappropriate.2 Plaintiff asserts that the Osage educational program, with some adjustments, is appropriate and the least restrictive option, and that the IEP is flawed because it fails to identify a specific out-of-district placement for M.A. Defendant asserts that it is incapable of providing M.A. with a FAPE in the LRE at Osage, despite its best efforts to do so, and that G.A. and E.A. are responsible for the failure to designate an out-of-district placement.
Presently before the Court are plaintiffs' motion and defendant's cross-motion for summary judgment. Plaintiff seeks to have the ALJ decision reversed and an order directing Voorhees to continue providing M.A. with a FAPE in district at Osage with certain program enhancements, as recommended by plaintiff's expert witness. Defendant seeks to have the ALJ decision affirmed and have M.A. placed in an out-of-district day program. Defendant also seeks a court directive instructing G.A. and E.A. to cooperate in the application and selection process for an out-of-district school.3 For the reasons stated herein, plaintiff's motion for summary judgment will be denied, and defendant's cross-motion for summary judgment will be granted, and the ALJ decision will be affirmed. M.A. shall be placed in an out-of-district program at Eden, Bancroft, or Sawtelle-Collingswood, whichever is first available. G.A. and E.A. are directed to cooperate with the application process.
Plaintiff M.A., who is severely autistic, was born on August 10, 1989 and is presently twelve years old. M.A. has attended Osage in the Voorhees Public School District since he was nine years old, where he has received in school and at home consulting services from Bancroft Programs and Douglass Outreach Programs. In or about the Spring of 2000, M.A.'s Child Study Team ("CST"), comprised of G.A., E.A., several teachers, and a consultant, attempted to create a feasible IEP to address M.A.'s needs and disability. On June 20, 2000, an IEP was created for M.A., calling for placement at an out-of-district school with a program for autistic children, but leaving the specific out-of-district placement school "to be determined." (See App. at 490, hereinafter the "2000-01 IEP"). M.A.'s parents, G.A. and E.A., rejected the 2000-01 IEP and reiterated their desire for M.A. to remain in an inclusion program at Osage.
On August 11, 2000, after no agreement could be reached about M.A.'s IEP, Voorhees filed a petition for hearing pursuant to N.J.A.C. 6A:14-2.7, seeking to compel placement of M.A. in an out-of-district school for the 2000-01 school year. (App. at 1.) On August 22, 2000, the parties reached a partial mediation agreement and G.A. and E.A. agreed to release M.A.'s records to the Eden School ("Eden") and to the Bankbridge School in Gloucester County ("Gloucester"). (See App. at 3-4.) According to M.A.'s parents, Eden had no openings at that time and also Gloucester was inappropriate. (See 7 Tr. 182-85.) On September 8, 2000, Voorhees sought emergent relief and an Order directing that M.A.'s records be released to Gloucester and that M.A. be placed there pursuant to the IEP. (See App. at 5-6.) Voorhees also sought to have M.A.'s home schooling period extended until an appropriate out-of-district placement was found.
On September 15, 2000, plaintiff and his parents made application for emergent relief and a "stay-put" order to keep M.A. at Osage pursuant to 20 U.S.C. § 1415(j) and 6A:14-2.7(o). On September 29, 2000, after a hearing, the Honorable Bernard Goldberg, Administrative Law Judge, authorized the release of M.A.'s records to four additional schools, Burlington County Special Schools District ("Burlington"), Durand School ("Durand"), Bancroft School ("Bancroft"), and Yale School ("Yale"). (App. at 18-21.) On October 5, 2000, Judge Goldberg ordered that M.A. should remain in his at home placement until October 22, 2000, and that G.A. and E.A. should visit Burlington and Durand to determine whether either was appropriate for M.A. (App. at 22-23.) On October 23, 2000, after no appropriate out-of-district placement could be identified, M.A. returned to Osage to be educated in a self-contained classroom with inclusion during lunch, recess, art, and physical education. Voorhees renewed its request for placement of M.A. in an out-of-district program.
On May 1, 2001, Judge Goldberg issued his final decision after receiving nine days4 of testimony and evidence. (See 1-9 T.) Seven witnesses testified on behalf of defendant Voorhees5 and three on behalf of plaintiff.6 Judge Goldberg made numerous findings in his opinion, including that M.A.'s aggressive behavior adversely affects his education, that M.A. is socially unengaged, that M.A.'s educational goals are largely unfulfilled, and that M.A. needs a specialized educational program which cannot be made to work at Osage. (See App. 29-54, May 2001 ALJ Decision, at 46-47.) Judge Goldberg also found that M.A. cannot be included in any mainstream class at Osage and that the Sawtelle School in Collingswood offers a day program for autistic children. (See id. at 47.) Judge Goldberg finally found that although implementing Dr. Holmes's suggestions could perhaps provide an appropriate education at Osage, such a result is unlikely based on the record. (See id.) Judge Goldberg noted M.A.'s parents' opposition to having M.A. placed anywhere outside of Osage and also G.A.'s refusal of his expert's offer of a placement at Eden for the extended 2001 school year. (See id. at 47-49.)
Judge Goldberg concluded that the record indicated that M.A. required placement in an out-of-district school for autistic children in order to receive an appropriate education. (Id. at 49.) Judge Goldberg further concluded that Eden was an appropriate placement for M.A. in its 2001 extended school year program and ordered placement of M.A. at Eden for the 2001 extended school year. (Id.) Judge Goldman finally concluded that Eden, Sawtelle, Bancroft, and Gloucester also had programs for autistic children and ordered M.A. to be placed in one of those four placements for the 2001-2002 school year. (Id.) Judge Goldman retained jurisdiction over implementation issues. (Id. at 50.)
On May 31, 2001, the instant Complaint was filed by M.A. On December 11, 2001, plaintiff filed a motion for summary judgment on his Complaint. Also on December 11, 2001, defendant filed a cross-motion for summary judgment. On January 31, 2002, a consent order was filed withdrawing certain damages claims. Pursuant to the stay put order, M.A. has remained at Osage since October, 2000.
The ALJ heard testimony from ten witnesses, including two experts, and the administrative record before this Court contains nine volumes of their testimony, in addition to over 800 pages of documents entered into evidence and relating to M.A.'s education.7 Plaintiffs G.A. and E.A. cite their own testimony and portions of the testimony of their expert, Dr. Holmes, in support of their argument that M.A. made real progress during the 2000-01 school year because Rebecca Null, who they believed was an ineffective teacher, was replaced by Jeff Giancaterino. Therefore, they assert, since Giancaterino arrived, M.A. has been obtaining a "meaningful educational benefit" at Osage. Defendants cite the testimony of teachers, professionals, and administrators at Osage, in addition to the testimony of their expert Dr. Breslin, in support of their position that M.A. is gaining little educational benefit and no social benefit at Osage. Defendants therefore assert that they are unable to provide M.A. with a FAPE in the LRE in-district at Osage and ask the Court to affirm the ruling of the ALJ. Payment for the private, out-of-district placement is not an issue in this case.
The first witness before the ALJ was Fran Collins, Director of Special Services at Voorhees, on behalf of defendant. (See 3T16-148 and 9T169:22-176:16; App. 31-33.) The ALJ found that Ms. Collins acknowledged that M.A. demonstrated aggressive behavior problems during the 1999-2000 school year. (App. at 32.) M.A.'s aggressive behaviors were addressed by reducing expectations and demands for M.A., which improved the behavior problems but caused some educational regression. (Id.) Ms. Collins further testified that a more intrusive behavioral modification plan than the one in place for M.A., developed by the Douglass Consultants, was rejected by G.A. and E.A. (Id.) Ms. Collins...
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