W. Orange Bd. of Educ. v. B.R.

• Decision Date: 22 July 2022
• Docket Number: Civil Action 21-13849
• Parties: WEST ORANGE BOARD OF EDUCATION, Plaintiff v. B.R. and L.R. o/b/o B.R. and G.R., Defendants.
• Court: U.S. District Court — District of New Jersey

WEST ORANGE BOARD OF EDUCATION, Plaintiff
v.
B.R. and L.R. o/b/o B.R. and G.R., Defendants.

Civil Action No. 21-13849

United States District Court, D. New Jersey

July 22, 2022

OPINION

CECCHI, DISTRICT JUDGE.

I. INTRODUCTION

This matter comes before the Court on West Orange Board of Education's (“Plaintiff” or the “Board”) motion for summary judgment (ECF No. 11) pursuant to Fed.R.Civ.P. 56. The Board seeks review of the Administrative Law Judge Thomas R. Betancourt's (“ALJ”) June 16, 2021 final decisions granting emergent relief to R.R.^[1] and L.R. (“Defendants” or the “Parents”) on behalf of B.R. and G.R. respectively, pursuant to the Individuals with Disabilities Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”). The Board asks this Court to reverse the ALJ's June 16, 2021 Order establishing new placements pending the outcome of due process petitions. ECF No. 11-4 (“Pl. Br.”) at 4, 32. The Parents opposed the Board's motion (ECF No. 13, “Def. Br.”), and the Board replied (ECF No. 14, “Pl. Reply”). The Court decides this matter without oral argument pursuant to Fed.R.Civ.P. 78(b). For the reasons stated below, the Court denies Plaintiff's motion for summary judgment.

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II. BACKGROUND

a. Factual Background^[2]

G.R. and B.R., siblings, are classified students eligible for special education and related services who currently reside in West Orange, New Jersey, within the area served by the Board. Pl. SMF at ¶¶ 1-2. Their Parents relocated them from their previous residence in New York City to West Orange in June 2021, waiting until late in the month so that the children could complete the school year in the New York City private schools in which they had been placed by the New York City Board of Education (“NYC Board”). Id. After the Parents advised the Board that the family would be moving to West Orange, the Board obtained and reviewed the students' records and conducted speech and occupational therapy evaluations of the children. Id. ¶ 3. The Board then proposed Individualized Educational Plans (“IEPs”) for each student. Id. ¶¶ 6-9. As explained more fully below, this matter arises from the subsequent dispute over whether the IEPs proposed by the Board were comparable to those the students had prior to moving to New Jersey.

i. G.R.

G.R. was born on February 28, 2010. He is diagnosed with Social Language Delay and Attention Deficit Hyperactivity Disorder. ECF No. 11-6, Ex. B at 2. Accordingly, he has been placed in specialized school environments by the NYC Board from a young age. Def. SMF.Supp. at ¶ 14. Prior to relocating to West Orange, G.R. attended the specialized private school The Parkside School (“Parkside”) in New York City, having been placed there by the NYC Board through an Individualized Education Program (the “NYC IEP”) dated March 11, 2021 that called for a NYS-approved non-public school with a classroom containing an 8:1+1 ratio.^[3] Id. ¶ 15.

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Additionally, the NYC IEP called for other programs and services, including: (i) speech therapy via two thirty-minute sessions per week in a group no larger than three and one individual thirtyminute session per week; (ii) occupational therapy through one thirty-minute session per week in a group of two; and (iii) counseling via one thirty-minute group session and one thirty-minute individual session per week. Pl. SMF at ¶ 4. These programs and services were to be provided during July and August as part of the extended school year (“ESY”) program. Id.

On June 4, 2021, having completed its evaluation of G.R., the West Orange Child Study Team found him to be eligible for special education and related services under the classification category of “Other Health Impaired.” Id. ¶ 6. As part of the Board's IEP, G.R. was offered placement in mainstream classes in West Orange's middle school with an in-class resource for all subjects and was offered a 1:1 aide for thirty days to help acclimate G.R. to the new educational setting. Id. The Board also proposed weekly speech and occupational therapy sessions (in group settings) and counseling (once weekly in an individual setting and once in a group setting). Id. ¶ 8. For the ESY of Summer 2021, the Board proposed a Language and Learning Disabilities (“LLD”) class for Language Arts and Math, as well as speech and occupational therapy in a small group, and individual counseling. Id.

ii. B.R.

B.R. was born on March 14, 2008. He is diagnosed with Autism Spectrum Disorder and Executive Functioning Disorders. ECF No. 11-6, Ex. F at 2. Prior to moving to West Orange, B.R. attended Winston Preparatory School in New York City (“Winston Prep NYC”) pursuant to the NYC IEP, which called for a NYS-approved non-public school with a classroom containing an 8:1+1 ratio. Def. SMF.Supp. ¶ 2. Additionally, the NYC IEP called for the provision of other programs and services, including: (i) speech therapy via one forty-minute small group session per

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week; (ii) occupational therapy via one forty-minute small group session per week; and (iii) counseling via one forty-minute small group session and one forty-minute individual session per week. Pl. SMF at ¶ 5. These programs and services were also to be provided during July and August as part of the ESY program. Id.

On June 4, 2021, after assessing B.R.'s records and performing an examination as they did with G.R., the West Orange Child Study Team found B.R. to be eligible for special education and related services. Id. ¶ 6. And like the Board's program for G.R., B.R.'s proposed IEP offered placement in mainstream classes in West Orange's middle school with an in-class resource for all subjects and a 1:1 aide for thirty days to help acclimate B.R. to the new educational setting. Id. The Board also proposed weekly speech therapy sessions, occupational therapy sessions, and counseling sessions, in both group and individual settings. Id. ¶ 9. For the ESY of Summer 2021, the Board proposed a LLD class for Language Arts and Math, as well as speech and occupational therapy in a small group, individual counseling, and a shared aide. Id.

iii. Initial Dispute over IEPs

On June 7, 2021, counsel for the Parents sent a letter to counsel for the Board, advising that the Parents had concerns about class size, teacher attention, and school size in light of G.R.'s and B.R.'s learning needs, and, as a result, believed the proposed IEPs for both B.R. and G.R. were substantially different from their NYC IEPs. Id. ¶ 10; Def. SMF Reply ¶ 10. Accordingly, the Parents requested that the Board place both students at Winston Preparatory School in Whippany, N.J. (“Winston Prep NJ”) until the Parents could observe the Board's proposed program at the start of the next school year. Id. The Board denied this request on the same day, advising the Parents that it believed its proposed IEPs were comparable to their current programs, as required by law. Id.

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iv. Administrative Proceedings

On June 10, 2021, the Parents filed due process petitions and requests for emergent relief with the New Jersey Department of Education. Pl. SMF ¶12. The due process petitions-currently still pending and not at issue here-challenged the appropriateness of the IEPs offered to B.R. and G.R. by the Board. The requests for emergent relief before the ALJ-the subject of review in the instant matter-sought immediate placement of B.R. and G.R. at Winston Prep N.J. during the pendency of the due process proceedings. Id. ¶¶ 13-14.

After oral argument concerning the requests for emergent relief, the ALJ issued final decisions on June 16, 2021 awarding G.R. and B.R. immediate placement at Winston Prep N.J. at the Board's expense, pending the outcome of the due process petitions. Id. ¶¶ 16-19. The ALJ, relying on N.J.A.C. 6A:14-1.1(g)'s provision for student transfers from an out-of-state school district, explained that, in each student's case, the only issue was “whether or not the proposed IEP offered by [the Board] is comparable to the [student's] current IEP.” ECF No. 11-6, Ex. B at 5 (the “G.R. Decision”); Ex. F. at 5 (the “B.R. Decision”).

Accordingly, the ALJ found that the Board's proposed IEPs as to both G.R. and B.R. were not comparable to their NYC IEPs. With respect to G.R., the ALJ focused on the differences in class size and student population between G.R.'s placement at Parkside under the NYC IEP and the proposed IEP by the Board. The ALJ noted the eight-student class-size at Parkside (all of whom were classified as Special Education students), compared to classes of approximately twenty students in the 500-student middle school proposed by the Board's IEP. See G.R. Decision at 56. The ALJ made similar findings as to B.R., who, under the Board's proposed IEP, would go from Winston NYC with classes of eight classified students in a school of 236 to the mainstream middle school with classes of approximately twenty students and a total population of

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approximately 500. See B.R. Decision at 5-6. Finding that the proposed IEP was therefore not comparable, the ALJ ordered that the students' new placement would be the Whippany, N.J. campus of Winston Prep and they would be maintained there by the Board until the resolution of the due process petitions. See G.R. Decision at 6-7; B.R. Decision at 6-7.

b. Procedural Background

Following the administrative proceedings, the Board initiated this action, pursuant to 20 U.S.C. § 1415(i)(2)(A) and New Jersey Administrative Code 6A:14-2.7(v) on July 20, 2021 seeking a review and reversal of the ALJ's June 16, 2021 decisions. ECF No. 1. After seeking a temporary restraining order and subsequently withdrawing its request (see ECF Nos. 3, 8), the Board brought this motion for summary judgment on October 8, 2021. ECF No. 11.

III. LEGAL STANDARD

a. Fed. R. Civ. P. 56

Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”...