K.N. ex rel. J.N. v. Gloucester City Bd. of Educ.

K.N. and J.N., on behalf of J.N., Plaintiffs, v. GLOUCESTER CITY BOARD OF EDUCATION, Defendant.

17-07976-NLH-AMD

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

March 24, 2021

OPINION

Appearances:

CATHERINE MERINO REISMAN

REISMAN CAROLLA GRAN & ZUBA LLP

19 CHESTNUT STREET

HADDONFIELD, NJ 08033-1810

Counsel for Plaintiffs

BRETT E. J. GORMAN

PARKER MCCAY PA

9000 MIDLANTIC DRIVE

SUITE 300

MT. LAUREL, NJ 08054

Counsel for Defendant

HILLMAN, District Judge

Background and Procedural History

The relevant factual and procedural history of this matter is set forth in this Court's previous Opinion, K.N. v. Gloucester City Bd. of Educ., 379 F. Supp. 3d 334 (D.N.J. 2019), and need not be fully repeated. This Court previously found that the Defendant Gloucester City Board of Education ("District") had violated Section 504, the ADA, and the NJLAD by (1) failing to provide J.N. meaningful access to the after-school program ("ASP"); and (2) subjecting J.N. to unnecessary social isolation.

After this determination, the Court found that Plaintiffs "have not provided the Court with (1) appropriate briefing on the remedies available in this type of action; and (2) if compensatory education is the appropriate remedy, record evidence supporting the amount of hours J.N. has been deprived of meaningful access and the rate at which each hour should be charged." Id. at 355.

This Court highlighted that Plaintiffs merely asserted, "without citation to the record, that J.N. was deprived of a certain amount of hours and that an appropriate rate per hour would be $80.00." Id. For this reason, the Court ordered the parties to file supplemental briefing addressing: (1) what remedies are appropriate under law; (2) whether damages are available; (3) the appropriate legal measure of damages in a case such as this; and (4) whether Plaintiffs should be considered a prevailing party, and whether, if so, Plaintiffs should be allowed attorneys' fees. Id.

Analysis

A. Compensatory Education in the Form of a Trust is an Appropriate Remedy

Plaintiffs argue compensatory education is an appropriate remedy in this case and that one accepted form of compensatory relief is the establishment of a fund to be expended for such services for the benefit of J.N. Plaintiffs argue the "broad remedial mandate of Section 504 and the ADA mirrors that of the IDEA, and the New Jersey legislature has emphasized that the NJLAD should be read liberally to allow the courts to award all appropriate damages." (ECF No. 30 at 8.) Plaintiffs also highlight that courts within the Third Circuit have "affirmed awards of compensatory education as a remedy specifically for claims under Section 504." (Id. at 9.) For these reasons, Plaintiffs contend the most appropriate relief in this case is for money to be set aside to provide J.N. with services. (Id. at 10.)

In response, the District does not dispute that compensatory education is the appropriate remedy. However, the District argues the appropriate form of compensatory education is services to be provided by the District through the IEP team. (ECF No. 31 at 5.) The District explains that this Court is not bound to order monetary relief and explained that the appropriate award is for additional services to be provided by J.N. as determined by the I.E.P. team. (Id.) The Districtargues the I.E.P. team should be provided with specific hours to allocate to J.N. throughout the remainder of his education at the District. (Id.)

Plaintiffs respond that they are not arguing the Court's power is limited to awarding monetary damages and instead their argument is that the establishment of a fund to be spend on the child's education is an appropriate remedy. (ECF No. 35 at 1.) Plaintiffs further argue that "even for a violation of the [IDEA], it is not appropriate to delegate the determination of appropriate compensatory education services to the [I.E.P.] team." (Id.) This Court agrees with Plaintiffs and conclude the most appropriate remedy is compensatory education in the form of a trust.

"Compensatory education is crucial . . . and the courts, in the exercise of their broad discretion, may award it to whatever extent necessary to make up for the child's lost progress and to restore the child to the educational path he or she would have traveled but for the deprivation." G.L. v. Ligonier Valley Sch. Dist. Auth., c, 625 (3d Cir. 2015) (citing D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498-99 (3d Cir. 2012)). "It is well settled that compensatory education is an equitable remedy that is available only after a parent has proven that a child has been denied FAPE or the benefits of school." Perrin v. Warrior Run Sch. Dist., No. 13-2946, 2015 WL 6746306, at *15(M.D. Pa. Sept. 16, 2015) (citing M.C. ex rel. J.C. v. Central Regional Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996)). The Third Circuit has held "[o]ne accepted form of compensatory education relief is the establishment of a fund to be spent on the child's education." D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 (3d Cir. 2012). As Plaintiffs highlight, courts within the Third Circuit have affirmed awards of compensatory education as a remedy specifically for claims under Section 504. See, e.g., Pocono Mt. Sch. Dist. v. T.D., No. 3:15-CV-764, 2018 U.S. Dist. LEXIS 121824, at *16-17 (M.D. Pa. July 20, 2018); Centennial Sch. Dist. v. Phil L. ex rel. Matthew L., 799 F. Supp. 2d 473, 488 (E.D. Pa. 2011). In Pocono Mt. Sch. Dist., the Third Circuit recently affirmed the district court's award of twenty-six hours of compensatory education under Section 504. Pocono Mt. Sch. Dist. v. T.D., 790 Fed. Appx. 387, 390 (3d Cir. 2019).

Here it is undisputed by both parties that compensatory education is an appropriate remedy. The real issue is which form of compensatory education is appropriate. This Court does not find the District's arguments persuasive that the actual appropriate remedy is to essentially have the very entity that committed the discrimination in the first place create an appropriate remedy for J.N. Instead, this Court agrees with Plaintiffs that the most appropriate remedy is compensatoryeducation in the form of a special needs trust to be used at the Plaintiffs' elections for J.N.'s reasonable educational, rehabilitative, therapeutic, or recreational programming.

B. The Proper Amount for a Compensatory Education Fund

Plaintiffs have submitted a declaration from Dr. Kathleen McCabe-Odri which they believe establishes the hourly rate for the services that the District denied J.N. Dr. McCabe-Odri declares that the hourly rate at the relevant time was $120 per hour, which consists of two one-to-one Applied Behavior Analysis ("ABA") therapists at $60 per hour. (ECF No. 30 at 10-11.) Plaintiffs further contend the relevant amount of hours is 810, which consists of 3 hours per day for a total of 270 days, which consists of 90 days for the fall semester of the 2013-2014 school year and 180 days for the entire 2014-2015 school year. (Id. at 11.)

For this reason, Plaintiffs request this Court to order the District to place $97,200 in a trust for J.N.'s reasonable educational, rehabilitative, therapeutic, or recreational programmed to be used at Plaintiffs' election and for such funds to continue to be available to J.N. if funds remain in trust when J.N. reaches the age of 21. (Id. at 11-12.)

In response, the District argues Plaintiffs' proposed rate vastly exceeds the amounts of awards in the cases cited by Plaintiffs and are not related to services that the Court deemedreasonable but instead the specialized services of ABA therapists. (ECF No. 31 at 7.) The District highlights the Court deemed reasonable the accommodation of a special education and a one-to-one aid and not an accommodation of two ABA therapists. The District further argues Plaintiffs are incorrectly using the cost of the ABA therapy services that J.N. has received after the relevant timeframe. (Id.) The District contend the appropriate focus instead should be on what the costs the District would have incurred had it provided the relevant services. (Id. at 8.) The District provides this Court with certification of Paul Whitman, who declares that the actual costs that the District would have incurred for retaining the services of a paraprofessional and/or substitute teacher during the relevant timeframe was $16.06 per hour. (Id.) Accordingly, the District argues had it provided the ASP to J.N. with two paraprofessional aides or a teacher and paraprofessional aide the total cost to the District would have been $26,017.20. The District does not contest the relevant amount of hours is 810.

In response, Plaintiffs argue that the District is seeking to calculate the amounts owed by referencing the cost of inadequately trained and unsupervised staff. (ECF No. 35 at 2.) Plaintiffs argue in order for J.N. to have access to the ASP "he needed the support of an experienced special education teacher,and experienced aide, and for the first six weeks of the semester, an experienced social worker." (Id.) Plaintiffs then direct this Court's attention to the annual salaries available online for full-time special education teacher, aide, and school social worker, along with the relevant hourly rates, in the District. (Id. at 2-3.) Plaintiffs then provide this Court with an adjusted rate of $91,800 and then explains that "Plaintiffs do not assert that either this calculation or the calculation in plaintiffs' original memorandum ($97,200) establishes the amount this Court must award. However, plaintiffs do emphatically assert that the District significantly undervalues the award by ignoring the fact that appropriately trained supports were necessary for meaningful access to the ASP." (Id. at 3.)

In response, the District first points out that at this point Plaintiffs have now asserted three different rates to the Court throughout the course of this litigation. (ECF No. 38 at 4.) The first being in Plaintiffs' Motion for Summary...