Barker ex rel. Her Minor Children L.W. v. Our Lady of Mount Carmel Sch.

ANGELA BARKER, individually and on behalfof her minor children L.W. and N.W., Plaintiffs,

v.

OUR LADY OF MOUNT CARMEL SCHOOL, et al., Defendants.

Civil Action No. 12-4308

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

September 1, 2016

NOT FOR PUBLICATION

OPINION

THIS MATTER comes before the Court on Defendants Our Lady of Mount Carmel School ("OLMC"), Our Lady of Mount Carmel Church, Sylvia Cosentino, and the Roman Catholic Archdiocese of Newark's ("Archdiocese") (collectively "Defendants") motion for summary judgment against Plaintiffs Angela Barker, individually and as guardian for her children, L.W. and N.W. (collectively, "Plaintiffs"). Dkt. No. 106. This case arises out of Ms. Barker's attempts to obtain special education services for her children when they attended OLMC, a private school in New Jersey. Plaintiffs now asserts a number of federal disability and race discrimination claims, in addition to state law claims. For the reasons set forth herein, Defendants' motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Ms. Barker is a practicing attorney who previously taught regular education and special needs students. Defs.' R.56 Stmt. ¶ 21.¹ Her children, N.W. and L.W., both of whom are African American, were 10 and 5 years old respectively when they enrolled at OLMC. Id. ¶ 26.

OLMC is a k-8 private elementary school in Tenafly, New Jersey. Id. ¶¶ 13-14. The school is operated by the local parish, which also maintains Our Lady of Mount Carmel Church. Id. ¶¶ 10-11. The parish falls under the religious jurisdiction of the Roman Catholic Diocese of Newark. Id. ¶¶ 5-6.

A. Plaintiffs Enroll in OLMC and Receive Parent/Student Handbook

In 2010, Ms. Barker removed N.W. and L.W. from public school and enrolled them in OLMC. Id. ¶ 29. Prior to the start of the 2010 school year, Ms. Barker reviewed material related to the School and spoke with Sylvia Cosentino, the principal at the relevant time. Id. ¶ 31. Ms. Barker completed an application form that included a promise to pay the yearly tuition and signed an acknowledgement form ("Acknowledgement Form") where they agreed to comply with OLMC's policies and procedures regarding, among other things, student conduct, discipline, and discrimination. Id. ¶¶ 35, 39.

OLMC's policies and procedures were set out in the Parent/Student Handbook, a copy of which was given to Plaintiffs before every school year ("Handbook"). Id. ¶ 36. The Handbook's "Non-Discriminatory Admission Policy" prohibited the school for discriminating on a number of characteristics including race and disability. Troublefield Decl. Ex. 13, 2010 Handbook at 2. The Handbook also contained a "Code of Conduct," which established the rules for disciplinary action for students who engaged in disruptive behavior. Defs.' Stmt. ¶ 40. Students who received three disciplinary referrals would be required to meet with OLMC's disciplinary committee, known as the SHINE Committee. Id. Then, a series of meetings would be required between the student, parents, and the SHINE Committee, with escalating punishments if the violations continued. Id.The Committee was permitted to ask a student to leave OLMC if the student's disciplinary issues continued after he or she received five disciplinary referrals. Id. Despite these procedures, however, the Handbook and the Acknowledgment Form explained that OLMC retained the discretion to take disciplinary action other than those specified in the Handbook. Id. ¶¶ 36, 39.

B. The 2010-11 School Year

In the fall of 2010, when L.W. was in kindergarten, Ms. Barker grew concerned with L.W.'s organization and attention skills. Carter Decl. Ex. 40, Barker Dep. Tr. 37:22-38:6. In December, she requested that the local Board of Education conduct a Child Study Team ("CST") evaluation of him, but was informed by a member of the Board's education services department that L.W. could not receive an evaluation through them because he was enrolled in private school. Defs.' Stmt. ¶¶ 43-44, 46; Troublefield Decl. Ex. 9, Barker Dep. Tr. 74:13-77:4. Ms. Barker then contacted Principal Cosentino, who explained that L.W. would have to be evaluated through OLMC's special services program. Defs.' Stmt. ¶ 48; Troublefield Decl. Ex. 80.

Plaintiff then exchanged e-mails with Maureen Kerne, the Director of the Region V Council for Special Education ("Region V"), an entity that provides educational services to eligible students, including those at OLMC. Defs.' Stmt. ¶ 50. On December 28, 2010, Kerne e-mailed Ms. Barker regarding submission of Chapter 193 forms to Principal Cosentino and to Bergen County Special Services ("BCSS"). See Troublefield Decl. Ex. 19. Chapter 193 services are remedial services funded by the State for handicapped students enrolled in nonpublic elementary and secondary schools—the services include evaluation and determination of eligibility for special education and supplementary instruction. See N.J.S.A. 18A:46-19.1 et seq. BCSS is under a contract with Tenafly to provide Chapters 193 services to OLMC. R.56 Stmt. ¶ 53.

On January 23, 2011, the BCSS representative assigned to OLMC scheduled a CST meeting to review L.W.'s eligibility. Id. ¶ 54. Ms. Barker participated in the meeting, and signed a consent form that explained that procedural safeguards are available to protect students' rights regarding "the identification, evaluation, classification, the development of an [Individual Support Plan ("ISP")], and the provision of a Free Appropriate Public Education." Id. ¶¶ 54, 56; Troublefield Decl. Ex. 25.

Following the meeting, on February 18, 2011, BCSS approved L.W. for an appointment for a psychiatric evaluation. Id. ¶ 55; Reply R.56 Stmt. ¶ 55, Dkt. No. 127. Ms. Barker also had L.W. privately evaluated by Dr. Aparna Mallik of the Child Development Center of St. Joseph Hospital. Id. ¶ 58. Both Dr. Mallik and BCSS's physician diagnosed L.W. with attention deficit hyperactivity disorder ("ADHD"). Id. ¶ 59; Troublefield Decl. Ex. 31, CST Evaluation Rpt. at 30. Ms. Barker was again invited to attend an ISP Team meeting. Defs.' Stmt. ¶ 57.

In April 2011, BCSS issued its CST evaluation report for L.W. BCSS determined that L.W. was not eligible for special education related services. See CST Evaluation Rpt. at 2. The evaluation report also contained information about procedural safeguards, but Ms. Barker did not appeal the determination. See id. at 3; Defs.' Stmt. ¶ 64.

Meanwhile, Ms. Barker contacted Principal Cosentino about N.W. Carter Decl. Ex. 24, Dkt. No. 115. She requested that N.W. also receive a CTS evaluation, but Principal Cosentino informed her that the deadline for Chapter 1983 evaluations for that year had passed and that the relevant forms would be available by May. Id.

C. The 2011-12 School Year

In October and November 2011, L.W. received a disciplinary referral for rudeness and a second for striking another student. See Troublefield Decl. Ex. 5, Cosentino Dep. 171:6-10; Id.Ex. 68, Disciplinary Referrals at 1; Supp. Troublefield Decl. Ex 110. Ms. Barker responded by e-mail to Principal Cosentino on November 29, 2011, in which she accused OLMC of attempting to "start a file on [L.W.]" Troublefield Decl. Ex. 66. The same day and the day after, L.W. misbehaved in class but was not given disciplinary referrals for the incidents. Defs.' Stmt. ¶¶ 120-21.

Around the same time, Ms. Barker hired Sandra Beckford of the Department of Specialized Education Services for Teaneck Public Schools to observe L.W. and N.W. in the classroom and to make recommendations about their behavior, organizational, and social skills. Id. ¶¶ 69-70; Reply Stmt. ¶ 70. Beckford made recommendations to Ms. Barker and OLMC about accommodations, adjustments and/or modifications ("AAMs") to the students' educations, which OLMC put in place. Id. ¶ 75. The AAMs included, for example, arranging for Ms. Barker to purchase a second set of text books so N.W. would not have to carry them home, offering extra instruction and parent meetings with N.W.'s math and Spanish teachers, and setting up a chart on L.W.'s desk to remind him about behavior. Id. ¶¶ 71, 103, 104, 108. In providing the AAMs, Principal Cosentino and several of the children's teachers were in contact with Ms. Barker and Beckford via email concerning grades, classwork, performance, and behavior. Id. ¶ 83.

Some of N.W.'s teachers spoke to Ms. Barker about his academic issues. N.W's math teacher e-mailed Ms. Barker, stating that N.W. was struggling with his work, that she offered to see him during lunch, and explained the criteria for N.W. to receive full credit for his homework. Id. ¶ 104. N.W.'s Spanish teacher, Nancy Varettoni, told Ms. Barker that N.W. received a D on a previous exam and was have difficulty with certain aspects of the lesson plan, and she recommended that N.W. change to a course that permitted her to grade based on effort. Id. ¶ 112.

In January 2012, Ms. Barker sent a letter to OLMC formally requesting an educational accommodation plan pursuant to Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., for both children. Id. ¶ 76.

On February 3, 2012, Ms. Barker also asked Kerne and Region V to provide an occupational therapy evaluation for L.W. and a CST evaluation for N.W. Id. ¶ 85. According to Kerne's deposition testimony, however, BCSS handled those types of evaluations, not Region V. See id. ¶¶ 85; Reply Stmt. ¶ 85. The next day, Ms. Barker again wrote to Kerne and demanded that L.W. and N.W. receive the evaluations from Region V, stating, "[t]his is my last and final request without resorting to the legal process. Should the evaluations not be done within the time frame allowed by the law, I will refer this matter to my attorney . . ." Defs.' Stmt. ¶ 86.

Three days letter, Elliot Guerra, the Dean of Discipline at OLMC sent an e-mail to Principal Cosentino and another individual that purportedly discussed Ms. Barker and her children. See Carter Decl. Ex. 25, Guerra E-mail. The message read:

Mike and (Sylvia),

...