J.M. v. Summit City Bd. of Educ.

J.M. and E.M., individually and o/b/o C.M., Plaintiffs, v. SUMMIT CITY BOARD OF EDUCATION, Defendant.

Civ. No. 19-00159 (KM) (ESK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

October 27, 2020

OPINION

KEVIN MCNULTY, U.S.D.J.:

J.M. and E.M. ("Parents") are the parents of C.M., who was an elementary-school student when the events here began. The Parents sought to have C.M. classified as disabled and thus entitled to a free appropriate public education ("FAPE") based on an individualized education plan ("IEP") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. The Summit City Board of Education ("District") determined that C.M. was not disabled, and the Parents challenged that determination through the IDEA's administrative process. After the Parents provided more evaluations of C.M. to the District, the District determined that C.M. was disabled and developed an IEP. The Administrative Law Judge ("ALJ") then upheld the District's original determination of non-disability and therefore did not reach the issue of the appropriateness of the later IEP. A year later, the Parents placed C.M. in private school.

The Parents now bring four claims before this Court. They seek (Count I) a reversal of the ALJ's decision affirming the District's determination that C.M. was not disabled; (Count II) a declaration that the District violated C.M.'s rights under the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794; (Count III) a declaratory judgment that the District must develop an IEP for C.M. based on the recommendations of the Parents' experts and reimburse them for the cost of C.M.'s private school; and (Count IV) attorney's fees. The District moved to dismiss Count III, either for lack of jurisdiction or failure to state a claim, and to strike certain allegations related to Count III. (DE 55.) Subsequently, the Parents moved for partial summary judgment on Count I and summary judgment on Count II. (DE 70.) The District cross-moved for summary judgment on all claims. (DE 74.)

For the following reasons, the District's motion to dismiss Count III for lack of jurisdiction is GRANTED, the District's motion to strike is DENIED, the Parents' motion for summary judgment is DENIED, and the District's cross-motion for summary judgment is GRANTED.

I. BACKGROUND

A. The IDEA

The IDEA requires states receiving federal education funding, like New Jersey, to ensure that students with disabilities receive a "free appropriate public education that emphasizes special education and related services designated to meet their unique needs." 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1); see also Munir v. Pottsville Area Sch. Dist., 723 F.3d 423, 425-26 (3d Cir. 2013). The IDEA first requires that school districts "identif[y], locate[], and evaluate[]" children with disabilities. 20 U.S.C. 1412(a)(3)(A). If a child has a disability, then a state satisfies its duty to provide a FAPE by providing an IEP, which is "an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017). If parents are dissatisfied with the district's determinations or IEP, they may bring a challenge in a state administrative process and then seek review in court. C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 66-67 (3d Cir. 2010).

B. Facts

C.M. was enrolled in first grade at one of the District's schools for the 2015-2016 year. (Dist. SMF ¶ 1.)¹ Shortly after the school year began, C.M.had a behavioral incident. (Id. ¶ 7.) C.M., the school psychologist, Dr. Angela Paster, and his teacher, Heidi Klebaur, then developed some behavioral rules for C.M. and agreed that C.M. would receive rewards for following those rules. (Id. ¶¶ 11-14; Parents SMF ¶ 21.)

Following that incident, Klebaur, Dr. Paster, and the school principal, Dr. Lauren Banker, met with the Parents to discuss C.M.'s behavior. (Dist. SMF ¶ 15; Parents SMF ¶ 24.) The Parents told them that C.M. previously had behavioral problems at daycare, struggled with homework, and likely had autism and ADHD. (Dist. SMF ¶ 16; Parents SMF ¶ 24.) In response, the District convened an Initial Intervention and Referral Services ("I&RS") meeting. (Dist. SMF ¶ 17; Parents SMF ¶ 32.)

Under I&RS, the District puts interventions or accommodations into place to address a student's difficulties. (Tr. A at 54-55.) Such interventions are available to all students, not only those already found eligible for special education. (Id. at 147; Tr. B at 15-16, 25-27.) The District monitors the student's progress and implements increasing interventions if necessary. If those progressive interventions are unsuccessful in allowing the student to access the general curriculum, then the student may be further evaluated for special education. (Tr. A at 54-55.) Special education usually entails a modification of curriculum that can also require that the student be removed from the general education setting. (Tr. B at 16-17, 111.) For C.M., the District implemented an incentive program, had C.M. attend a social skills group, and provided support in reading and writing. (DE 73-7, at 1.)

The Parents provided the District with evaluations conducted by Dr. Carolyn McGuffog, a neuropsychologist, who had met with C.M. after he had showed behavioral problems at daycare. (Dist. SMF ¶¶ 2, 5, 19-20; Parents SMF ¶ 9-12, 36.) Dr. McGuffog performed sixteen tests, measuring various skills, academic abilities, and traits. (McGuffog Rep. at 3.) She concluded that C.M. presented a "complex array of neurocognitive strengths and weaknesses that poses a [] diagnostic challenge." (Id. at 36.) She noted that some of his behaviors were "suggestive" of attention deficit hyperactivity disorder ("ADHD"), but that "an ADHD diagnosis does not capture other areas of developmental weaknesses." (Id. at 37.) She instead "proposed" a diagnosis of social language disorder but also noted that "[a]ll areas of deficiency" could be subsumed underautism. (Id.) She recommended further evaluations, "behavioral supports in school," and "academic support in language arts." (Id.)

The District notified the Parents that it intended to further evaluate C.M. for a disability. (Dist. SMF ¶¶ 36-37.) The District explained that C.M. had difficulties in reading and writing and had exhibited behavioral and social problems, although interventions had helped. (DE 73-8, at 2.) To evaluate C.M., the District conducted multiple assessments:

• a social assessment that relied on records, parent and teacher interviews, and observations, showing that C.M. could mostly comply with directions and that, while he had some behavioral incidents, they occurred for only 5% of the schoolyear and were mitigated by the incentive program (DE 73-19, at 4);

• a psychological assessment that relied on records, an interview with C.M., and observations, showing that C.M. had "positive feelings towards his family and peers, the need to control other peoples' behaviors, and . . . difficulty keeping calm when he perceives that other people have treated him unfairly" (DE 73-21, at 6);

• an occupational therapy assessment that relied on observations and teacher reports, showing that C.M. could "safely negotiate his school environment" (DE 73-20, at 1); and

• a physical therapy services assessment that relied on a physical assessment, showing that C.M. had normal gross motor skills (DE 73-18, at 3).

The Parents and the District met in February 2016 to discuss whether C.M. was eligible for special education. (Dist. SMF ¶ 55; Parents SMF ¶ 219.) The District reviewed the assessments, Dr. McGuffog's report, other observations,² and records and determined that C.M. was not disabled. (DE 73-9, at 2.) The District stated that C.M.'s reading level had progressed and that, while his writing continued to be an area of weakness, assistance had proven successful. (Id.) The District emphasized that C.M. continued to benefit from the I&RS interventions. (Id.) Accordingly, the District recommended that C.M. continue to work with the I&RS team and follow their interventions. (Id.; see also Tr. A. at 109 (Dr. Paster testifying that "[b]ecause he was making progress in his current program and interventions were successful, . . . we didn't feel that specialized curriculum, specialized—special education was appropriate at the time"); Tr. B at 52 (Dr. Banker testifying similarly).)

The Parents disagreed. (DE 73-9, at 2.)

C. The Administrative Process

To contest the District's determination, the Parents filed a due process petition in May 2016 with the New Jersey Department of Education. (Pet. at 1.) They claimed that by failing to find that C.M. was disabled, the District violated the IDEA, RA, and corresponding New Jersey law. (Id. at 18.) They thus sought a determination that C.M. is disabled and an order directing the District to develop an IEP based on Dr. McGuffog's recommendations. (Id. at 2.)

While the administrative process was ongoing through 2016 and into 2017, the Parents had C.M. further evaluated by Dr. McGuffog and Alana Fichtelberg, a speech pathologist. (DE 70-19, at 3-6.) Their evaluations showed continued struggles in reading, writing, and behavior, and Dr. McGuffog recommended several diagnoses, including autism, ADHD, and specific learning disorders. (Id.) In March 2017, the District referred C.M. to an evaluation with psychiatrist Dr. Ellen Pratt, who diagnosed C.M. with autism and ADHD. (Id. at 2-3.) Based on these evaluations, in April 2017, the District classified C.M. as IDEA-eligible due to autism and developed an IEP. (Id. at 13.) In August 2017, the Parents consented to the IEP but noted their disagreementwith "the entire program as written and reserve[d] all rights under the law to challenge the program as necessary." (Id. at 27.)

The administrative process continued, and an ALJ held hearings through 2017 and 2018, with testimony...