P.N. v. Greco
| Decision Date | 05 December 2003 |
| Docket Number | Civ. No. 00-6179(DRD). |
| Parties | P.N. and G.N., individually and on behalf of their minor son, J.N., Plaintiffs, v. DANIEL GRECO, The Windsor School, Ridgewood Board of Education, John Campion, the New Jersey Department of Education, and David Hespe, Commissioner of the New Jersey Department of Education, Defendants, and Daniel Greco, The Windsor School, Third-Party Plaintiffs, v. Federal Insurance Company, The Chubb Corporation and Chubb Group of Insurance Companies Third-Party Defendants. |
| Court | U.S. District Court — District of New Jersey |
COLE, SCHOTZ, MEISEL, FORMAN, & LEONARD, A Professional Corporation, Hackensack, New Jersey, Of Counsel and on the Brief, Rebecca K. Spar, Esq., On the Brief, Wendy L. Klein, Esq., Attorneys for Plaintiffs, P.N. and G.N. o/b/o J.N.
FOGARTY & HARA, Esqs., Fair Lawn, New Jersey, Of Counsel, Debra Shannon, Esq., Attorneys for Defendants/Third Party Plaintiffs, Daniel Greco and The Windsor School.
SILLS CUMMIS RADIN TISCHMAN, EPSTEIN & GROSS, P.A., Newark, New Jersey, Of Counsel and on the Brief, Philip E. Stern, Esq., On the Brief, Ruth M. Ruggero, Esq., Attorneys for Defendant, Ridgewood Board of Education.
DWYER, CONNELL & LISBONA, Fairfield, New Jersey, Of Counsel and on the Brief, Donald T. Okner, Esq., On the Brief, Lynn A. Lisbona, Esq., Attorneys for Defendant John Campion.
Plaintiff, J.N. and his parents, Plaintiffs, P.N. and G.N., filed this action seeking, among other things, a review of a final decision of the New Jersey Office of Administrative Law ("OAL"), equitable relief, damages and attorneys fees and expenses. The defendants remaining in the case are Daniel Greco, co-executive director of The Windsor School; The Windsor School ("Windsor"); the Ridgewood (New Jersey) Board of education ("Ridgewood" or the "Board of Education"); and John Campion, Director/Supervisor of Special Programs, Special Education of the Board of Education.1 Plaintiffs and the Defendants have moved for summary judgment on various counts of the Amended Complaint. For the reasons stated below, the motions will be granted in part and denied in part as detailed in the conclusion of this opinion.
J.N. was born on June 3, 1986 and is presently nearly 17 years of age. He and his parents reside in the Ridgewood, New Jersey School District. During the 1994-1995 school year when he was eight years old J.N. was classified as eligible under the Individuals with Disabilities Education Act ("IDEA") for special education and related services, and he remained so classified throughout the period relevant to this case. J.N. is also a qualified individual with a disability as defined under §504 of the Rehabilitation Act and the Americans with Disabilities Act ("ADA").
During his kindergarten year J.N. withdrew from the public school kindergarten and began attending a special school. He continued in special schools for most of his subsequent years prior to attending Windsor.
In accordance with the IDEA, J.N. had an Individualized Education Plan ("IEP"), which is a written statement setting forth his level of educational performance, annual educational goals, educational services to be provided and his placement, if not in a regular class. See 20 U.S.C. §1414(d); 34 C.F.R. §§300.340-30.350; N.J.A.C.6A:14-3.7.
In September 1997 J.N. was placed in Windsor pursuant to his IEP. At the time of his placement the Board of Education's child study team described J.N. as a fragile child who was easily frustrated in a school environment and experienced extreme anxiety when asked to accomplish academic tasks. As his anxiety increased he refused to come to school. His IEP team, including P.N. and G.N., concluded that J.N. needed a school setting that would address his sensitivity to school and would provide him with a sense of structure, safety and security.
As set forth in IDEA and its regulations, what will be included in the student's IEP is to be decided at a meeting attended by a variety of participants, including: (i) the parents of the disabled child; (ii) at least one regular education teacher of the child, if the child is participating in the regular education classroom; (iii) at least one special education teacher; (iv) a representative of the district board of education; (v) at least one individual who can interpret the instructional implications of evaluation results; (vi) the student; (vii) other experts; and (viii) when a child has been placed in a private school, a representative of the private school. See 20 U.S.C. §1414(d)(1)(B); 34 C.F.R. §300.344; N.J.A.C. 6A:14-2.3(i)(2); N.J.A.C. 6A:14-7.5(a)(1). While J.N. was enrolled at Windsor, a representative from Windsor was a member of J.N.'s IEP team.
Windsor is a private school approved by the New Jersey State Department of Education for the placement of disabled students by local school districts. When it obtained such approval Windsor executed an affidavit attesting that it would comply with IDEA, state statutes and regulations. The tuition of a substantial number of its students is paid by boards of education. When it accepted J.N. it entered into an agreement with the Board of Education. Among the terms of the 1998-1999 agreement were:
1. The SENDING DISTRICT agrees to purchase the educational services described in the pupil's individualized education program for J.N. resident pupil from the SENDING DISTRICT, from the APPROVED PRIVATE SCHOOL. The APPROVED PRIVATE SCHOOL agrees to provide the educational services described in the pupil's individual education program to J.N. in accordance with the applicable New Jersey Statutes and the rules and regulations of the State Board of Education.
2. This agreement shall be in effect for the 1998-1999 School Year. The educational services shall commence on September 3, 1998.
10. This AGREEMENT may be terminated by the SENDING DISTRICT or by the APPROVED PRIVATE SCHOOL upon 15 calendar days written notification to the other party.
14. The APPROVED PRIVATE SCHOOL as signatory to this contract agrees to operate in accordance with applicable federal and state laws, and rules and regulations including but not limited to N.J.A.C. 6:28-7.
J.N. began his fifth grade at Windsor pursuant to a comparable agreement in September 1997 and continued satisfactorily throughout the year with a teacher he liked. He began the next year with a new teacher with whom he did not interact as well. There occurred frequent telephone calls from J.N.'s parents to members of the Windsor staff. Windsor asserts that these telephone calls and J.N.'s frequent absences from school made it impossible to achieve the goals of J.N.'s IEP, requiring that he be terminated from Windsor for educational reasons. Plaintiffs characterize these telephone calls as the exercise of their rights under IDEA and the applicable New Jersey statutes and regulations for which J.N. was terminated in retaliation.
In any event, on December 16, 1998 Greco decided to terminate J.N.'s placement at Windsor. He promptly telephoned P.N., J.N.'s father, and advised him of this determination. At about the same time he communicated the decision by telephone to Dr. Joseph Oxhorn, the Board of Education's Child Study Team Case Manager. At that time it was decided that J.N. could continue at Windsor up to the holiday break on December 23 but that he would not return when the new semester commenced on January 4, 1999 — nineteen days later.
Campion and Oxhorn, representatives of the Board of Education, met with the parents, G.N. and P.N. on December 17, 1998. They sought to preserve J.N.'s placement at Windsor. No member of the Windsor staff was present. On December 18 J.N. and his parents attended a holiday show at Windsor. The parents attempted to discuss J.N.'s termination with teachers, aides and a parent. Greco considered this to be inappropriate and decided that he did not wish to have J.N. continue at the school. He immediately informed Campion by telephone that J.N.'s effective termination date was December 18, not January 4, 1999. On Monday, December 21 Greco informed Campion in writing that pursuant to their conference call on December 18, J.N. had been immediately terminated from Windsor.
In a letter to Campion dated December 20, 1998, the N.s requested that J.N. be given an opportunity to say good-bye to individuals at Windsor School. They also request that Dr. Greco send a letter to J.N., telling him that J.N.'s termination from Windsor did not have anything to do with J.N.'s actions. Lastly, the N.s indicated that they would be forwarding a list of expenses for reimbursements and wanted to know what Ridgewood planned to do in response to "Windsor's irrational and inhumane treatment" of their son. Campion forwarded the December 20 letter to Greco.
On December 22 Campion wrote to the N.s confirming that Oxhorn proposed for J.N. an excellent opportunity at the BCSSSD middle school in Garfield. He repeated a request that P.N. return forms authorizing him to send confidential information to BCSSSD. He concluded,
On January 4, 1999 P.N. and G.N. wrote to Campion setting forth a series of demands, including:
* Hold a Child Study team meeting with all participants from Ridgewood and Windsor. This meeting should have been convened before anyone executed any plan for termination. Ridgewood School District will arrange.
* Academic one-to-one tutoring at a site outside the home while there is an interruption in program. Transportation to/from this site to be provided. We know of a certified teacher that we would like to use. Cost of tutoring & travel to be paid by Ridgewood School District.
* Letter indicating that this termination is not J's fault from Dr. Greco, Windsor, and John Campion,...
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