T.R. v. Cherry Hill Twp. Bd. of Educ., Civil No. 11-2547 (RBK/KMW)

T.R. and DR. o/b/o JR., Plaintiffs,

v.CHERRY HILL TOWNSHIP BOARD OF EDUCATION, Defendant.

CHERRY HILL TOWNSHIP BOARD OF EDUCATION, Plaintiff,

v.T.R. and D.R. o/b/o J.R., Defendants.

Civil No. 11-2547 (RBK/KMW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

Dated: April 17, 2012

NOT FOR PUBLICATION

(Doc. Nos. 13, 14)

OPINION

KUGLER, United States District Judge:

This matter comes before the Court after judgment for petitioners in an administrative proceeding pursuant to a suit under the Individuals with Disabilities in Education Act ("IDEA"). Here, T.R. and D.R. move, on behalf of J.R, for judgment on a stipulated record against Cherry Hill Township Board of Education. T.R. and D.R. seek enforcement of the administrative order to place J.R. in a residential facility, as well as costs and attorneys' fees. Cherry Hill Township Board of Education ("the Board") has also filed a motion for summary judgment against T.R. and D.R., claiming that the administrative determination below must be reversed because theBoard did not violate the IDEA in denying J.R. residential education placement, and because the Administrative Law Judge ("ALJ") improperly failed to recuse himself from the proceedings below. Because the Court finds that J.R. requires residential placement in order to receive the free appropriate public education guaranteed by the IDEA, T.R. and D.R.'s motion is granted, and the motion of Cherry Hill Township Board of Education is denied.

I. BACKGROUND

A. Procedural History

This matter is the consolidation of two actions arising from an administrative decision in a case under the Individuals with Disabilities Education Act of 2004 ("IDEA"), 20 U.S.C. § 1400 et seq. Seeking residential placement for J.R., their autistic adoptive son, T.R. and D.R. filed a petition for a due process hearing against the Cherry Hill Township Board of Education on July 15, 2009. Initial Decision of ALJ Dennis P. Blake, April 8, 2011 ("ALJ Op."), 2. On August 21, 2009, an unsuccessful mediation took place. Id. The first hearing in the underlying administrative action took place before ALJ Dennis P. Blake on January 26, 2010, and additional hearings were conducted on eleven subsequent noncontinuous days, with the record closing on March 11, 2011¹ , when the parties filed their final summations. Id. In a decision dated April 8, 2011, the ALJ granted the due process petition of T.R. and D.R., which sought residential placement for their autistic son, J.R. The ALJ denied T.R. and D.R.'s request for Compensatory Education payments beginning with the 2007-08 school year. T.R. and D.R. subsequently brought an action in this Court for attorneys' fees and costs, as the prevailing party in the administrative proceeding. Compl., 11-cv-2547. The Cherry Hill Township Board of Education also filed an action in this Court, appealing the ALJ's decision. Compl., 11-cv-3875. OnNovember 2, 2011, Magistrate Judge Karen M. Williams issued an Order consolidating the two matters under one docket (11-cv-2547). Now before the Court is T.R. and D.R.'s motion for judgment on a stipulated record, affirming the decision of ALJ Blake below and granting costs and counsel fees to T.R. and D.R. Also before the Court is the Board's motion for summary judgment in its action to reverse the ALJ's decision on the grounds that the Board's nonresidential placement of J.R. was not in violation of the IDEA, and because the ALJ's alleged bias and conflict of interest should have led him to recuse himself from the administrative proceedings.

B. Facts

Born on June 3, 1998, J.R. was 12 years old at the time of the ALJ's decision below. ALJ Op., 3. J.R. is classified as autistic and eligible for special education. Id. J.R. was diagnosed with a Pervasive Development disorder when he was two years old, and he has since been diagnosed with autism and seizure disorder. Cherry Hill Township Board of Education Statement of Material Facts ("Township Board SMF"), ¶¶ 2-3. Pursuant to the IDEA, the Cherry Hill Township Board of Education is obligated to provide J.R. with a free appropriate public education ("FAPE"). Id., see also 20 U.S.C. § 1412(a)(1)(A).

During the 2007-08 and 2008-09 school years, J.R. attended the Bret Harte Elementary School Autism Support Class ("Bret Harte"), which is "a special class for students with autism that has no more than six students and is run by a special education teacher who has educational assistants staffed in the room and related services provided in accordance with each individual student's needs." ALJ Op., 3. During the 2009-10 school year, and continuing through the ALJ's decision, J.R. attended the day program at the Bancroft School Elementary Program ("Bancroft") in Haddonfield, New Jersey. Id. At the heart of this dispute is whether J.R.'splacement at the Bancroft day program is sufficient to constitute a free appropriate public education ("FAPE"), or whether, as T.R. and D.R. argue and as the ALJ found, J.R. requires a residential placement in order to satisfy his right to FAPE.

C. Summary of Administrative Proceedings

In the administrative proceedings below, progress reports from J.R.'s tenure at both Bret Harte and Bancroft were examined, as were other occupational therapy, psychological, and speech and language reevaluations, and the Individualized Education Programs ("IEPs") that have been assigned to J.R. during the relevant years. J.R.'s May 16, 2007 IEP was written while J.R. was at Bret Harte, and recommended that J.R. return there the following year. The IEP indicated that J.R. "is a very sweet child" who was "improving in his ability to follow classroom routines," and showed some "very strong" abilities, though his "performance on academic tasks" was deemed "inconsistent." 5/16/07 IEP, Cherry Hill Township Bd. of Educ. Summ. J., Ex. I, 2. However, J.R. manifested an "inability to regulate himself" and, moreover, "his self-stimulatory behaviors (flapping arms, spinning and mouthing objects) frequently inhibit[ed] him from participating in educational tasks," and J.R. also showed "episodes of aggressive and noncompliant behavior." Id. The 5/16/07 IEP further explains that J.R. "has a lot of academic skills but has difficulty demonstrating his knowledge independently and continues to work toward generalizing skills . . . ." Id. This emphasis on generalization—essentially, "putting . . . in practice" without adult prompting the skills J.R. learns—is considered to be an important part of J.R.'s development. Tr., Apr. 16, 2010 Hearing, 71 (defining generalization and establishing, through cross-examination of a Board witness, that it is unclear that J.R. has generalized the skills he practices at school). Moreover, the 5/16/07 IEP indicates that J.R.'s "independence that was noted at school is not seen at home," and that "[h]e tends to regress inone area when he progresses in other areas." 5/16/07 IEP, at 2. Likewise, the "Speech/Language Therapy" component of the Present Levels of Educational Performance ("PLEP") report included in J.R.'s 5/16/07 IEP reiterated that J.R. "is much more communicative when in a structured environment that supports his behavioral needs." Id., PLEP. Finally, the Placement Decision of the 5/16/07 IEP indicated a "3rd grade self contained autistic support classroom with opportunities for mainstreaming." Id. ("Decision-Making for Removal from General Education Classes").

J.R.'s May 23, 2008 IEP also showed that J.R. was currently placed at Bret Harte, and that his planned placement for the following year was also at Bret Harte, in grade 4 of the Autistic Support program. As explained in the 5/16/07 IEP, J.R.'s 5/23/08 IEP shows that, despite the fact that J.R. is "very sweet and affectionate," and can talk in 5-6 word sentences "[d]uring structured classroom activities," nevertheless, "in less-structured classroom activities, when [J.R.] wants something . . . he will simply try to grab the item he wants instead of using words to ask for it (although he is capable of doing so)." 5/23/08 IEP, Cherry Hill Township Bd. of Educ. Summ. J., Ex. L, 2. Moreover, as with the previous year's IEP, the 5/23/08 report indicated that J.R. "struggles with generalizing skills . . . to group and any other alternate settings." Id. Moreover, J.R.'s "self-stimulatory behaviors seriously impact his ability to be independent . . . ." Id. The 5/23/08 IEP lists under "Parental Concerns" the desire for J.R. "to be independent in his daily living skills, especially with his toileting," and the hope that J.R. will learn to "use appropriate language to express his wants and needs." Id. at 3.

J.R.'s May 27, 2009 IEP, also written while J.R. was at Bret Harte, and projecting his placement there the following year, reflects many of the same issues—in fact, it expresses verbatim much of what is contained in the 5/23/08 IEP. See 5/27/09 IEP, Cherry Hill TownshipBd. of Educ. Summ. J., Ex. N, 3. However, the 5/27/09 IEP also reflects some decline in J.R.'s progress; specifically, it indicates that J.R. "has had a dramatic increase in innapropriate [sic] behavior starting December 2008 through present," which includes "aggressions such as hitting, kicking, and banging . . . ; shrieking and screaming 100+ times during the school day; using inappropriate language . . . ; and noncompliance such as throwing instructional materials." Id. The 5/27/09 IEP explained that "[d]ue to [this] increase in inappropriate behavior his academic and classroom performance has been inconsistent and difficult to assess." Id. Moreover, J.R.'s parents said their "[g]reatest concern is behavior," because J.R. "requires constant attention in the home," and "is hitting without provocation." Id. J.R.'s parents "cannot leave him with his sister without supervision." Id. Tellingly, J.R. "has not generalized any school performance at home." Id.

J.R. received another IEP on July 23, 2009, which reflected that he would be placed at Bancroft for the 2009...