Opinion
Civil Action No. 97-2039 (NHP)
September 25, 2000
Cherie L. Maxwell, Esq., Kelly Ann Guariglia, Esq. SILLS, CUMMIS, ZUCKERMAN, RADIN, TISCHMAN, EPSTEIN GROSS, P.A. Newark, N.J., Attorneys for Plaintiffs and Third-Party Defendants
Rebecca K. Spar, Esq., David M. Kohane, Esq. COLE, SCHOTZ, MEISEL, FOREMAN LEONARD, Hackensack, N.J., Attorneys for Defendant/Third-Party Plaintiffs N.E., as Guardian Ad Litem for M.E., an infant.
BACKGROUND
The facts of this case are extensively set forth in this Court's Letter Opinion of July 30, 1998, and the Court of Appeals for the Third Circuit's opinion dated March 30, 1999. In the previous Letter Opinion, this Court reversed the ALJ's determination that the Ridgewood Board of Education (hereinafter "Ridgewood") had failed to prove by a preponderance of the evidence that defendant M.E.'s 1996-97 individualized education program ("IEP") was "appropriate" under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. See Ridgewood Board of Education v. N.E., No. 97-2039, slip op. at 14 (D.N.J. July 30, 1998). This Court also concluded that the ALJ erred in ordering Ridgewood to pay M.E.'s tuition at the Landmark School. See id. Based on the aforementioned findings, this Court affirmed the ALJ's denial of compensatory education and tutoring reimbursement. See id. at 16. Additionally, this Court granted the various individual third-party defendants' motion for summary judgment on all of the counts in the Amended Third-Party Complaint based on the qualified immunity enjoyed by municipal officers. See id. at 19-21.
For purposes of convenience, the Court will refer to defendants interchangeably as "N.E.," "M.E.," or the "Es."
On March 30, 1999, the Third Circuit affirmed in part and vacated and remanded in part this Court's July 30, 1998, opinion. See Ridgewood Board of Education v. N.E., 172 F.3d 238 (3d Cir. 1999).
Part of the procedural history of this case is somewhat confusing. On September 1, 1998, this Court stayed its July 30, 1998 order dismissing the case. On September 9, 1998, the Third Circuit stayed this Court's September 1, 1998 stay. After hearing argument on November 4, 1998, the Third Circuit dissolved its September 9, 1998 stay of this Court's September 1, 1998 stay of its July 30, 1998 order. The effect of the Third Circuit's dissolution of its previous stay was to reinstate the ALJ's decision.
The Third Circuit affirmed this Court's dismissal of the following: (1) N.E.'s third-party complaint alleging 42 U.S.C. § 1983 violations against third-party defendants in their official capacity; (2) N.E.'s 42 U.S.C. § 1985 conspiracy claim; and (3) N.E.'s 42 U.S.C. § 1983 conspiracy claim. Therefore, only the remaining claims will be addressed.
DISCUSSION
I. Whether M.E. Received a "Free Appropriate Public Education" from 1988-1997 and is Entitled to Compensatory Education
Pursuant to the Third Circuit's opinion, this Court must assess whether M.E. received a free appropriate public education from 1988 to 1997. In determining whether a disabled student has been provided a "free and appropriate education," the Supreme Court held in Board of Educ. v. Rowley, 458 U.S. 176, 192, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), that the student's IEP must provide "meaningful" access to education. In rejecting a bright-line rule, the Court concluded that a school satisfies IDEA by "providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Rowley, 458 U.S. at 202-03.
The only issue before the Administrative Law Judge was whether the 1996-97 IEP was appropriate. Consistent with the Third Circuit's direction, this Court must ascertain whether M.E. is entitled to compensatory education for the years 1988-1997, which necessarily requires a determination of whether M.E.'s education was appropriate in each of those years. See Ridgewood , 172 F.3d at 251. Additionally, the Third Circuit explicitly rejected as meritless Ridgewood's argument that the statute of limitations barred N.E.'s compensatory education claims. See id . at 250-51.
In explaining the goal of IDEA, the Supreme Court found that "the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Rowley , 458 U.S. at 192 .
In Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988), cert. denied sub nom., Central Columbia Sch. Dist. v. Polk, 488 U.S. 1030 (1989), the Third Circuit held that the student's IEP must provide "significant learning" and "meaningful benefits." Polk, 853 F.2d at 182, 184. Additionally, the IEP "must be gauged in relation to the child's potential," and where a student exhibits significant intellectual potential, IDEA requires "a great deal more than a negligible [benefit]."Id. at 185, 182.
In reversing this Court's determination that the 1996-97 IEP complied with IDEA, the Third Circuit directed that the standard set forth inPolk requiring "significant learning" and "meaningful benefit" be utilized to assess whether the IEP satisfies IDEA's strictures. See Ridgewood, 172 F.3d at 247. The "meaningful benefit" standard is "somewhat more stringent" than the "more than a trivial educational benefit" test. T.R. v. Kingwood Tp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir. 2000). Thus, the Court must "inquire into whether the Board's IEP would confer a meaningful educational benefit on" M.E. Id. "[A]ppropriateness is judged prospectively so that any lack of progress under a particular IEP, assuming arguendo that there was no progress, does not render that IEP inappropriate." Carlisle Area Sch. v. Scott P., 62 F.3d 520, 530 (3d Cir. 1995). See also Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993) ("[A]dequacy of an IEP can only be determined as of the time it is offered to the student, and not at some later date. . . .").
Further, the Third Circuit suggested that M.E.'s intellectual potential be considered in this inquiry. See Ridgewood, 172 F.3d at 248. This requires the Court to "analyze the type and amount of learning of which M.E. is capable." Id. See also Kingwood, 205 F.3d at 578.
With the foregoing in mind, the Court next endeavors to determine whether M.E.'s educational program from 1988 to 1997 provided M.E. with "significant learning" and a "meaningful educational benefit," all the while duly considering M.E.'s intellectual potential. The burden remains on Ridgewood to prove that it complied with IDEA. See Kingwood, 205 F.3d at 579 (citing Oberti, 995 F.2d at 1219-20).
A. 1988-1991
Upon review of the voluminous record in this case, it is clear that M.E. did not receive a free appropriate public education during the time period of 1988-1991. The proper inquiry is whether the education the student received was inappropriate; not whether the IEP itself was inappropriate. See Ridgewood, 172 F.3d at 249-50.
Upon M.E.'s arrival in the Ridgewood school district in September 1988, he soon experienced academic difficulties, including deficient reading, writing and organizational skills. Principal, third-party defendant Charles Abate concluded that M.E. did not have a learning disability and suggested that he be demoted to the first grade. Because his weaknesses were so substantial at the end of first grade, M.E.'s teacher recommended that he enroll in summer school, which M.E. did. During the second grade in April 1990, standardized testing revealed that M.E.'s total reading score was at the third percentile, his word analysis was at the eighth percentile, total language was at the ninth percentile, and his vocabulary was at the fourth percentile compared with his peers. At this time, M.E.'s second grade teacher recommended that he take a reading skills improvement course, in which his parents again enrolled him.
M.E.'s academic difficulties continued in the third grade. In October 1990, M.E.'s parents then had an independent Learning Disability Teacher Consultant ("LDTC"), Howard Glaser ("Glaser"), test M.E. for learning disabilities. Glaser found that M.E. had significant deficits in reading and decoding and encoding problems, and believed that M.E. had a learning disability. Ridgewood finally agreed to have a Child Study Team ("CST") evaluate M.E. in March 1991. The record indicates that, as of M.E.'s CST evaluation in March 1991, the educational program Ridgewood implemented for M.E. was devoid of any additional or special educational programs to assist M.E. in conquering his academic hardships. Therefore, the educational programs that Ridgewood devised for each school year were not tailored to confer a "meaningful educational benefit" on a young student suffering from a fairly serious learning disability, especially in light of M.E.'s considerable potential. Although appropriateness must be gauged prospectively, this is also readily apparent from M.E.'s academic performance, which steadily deteriorated from 1988 to 1991. This fact is relevant where M.E. continued in essentially the same regular education environment throughout this time period.
For example, Carolyn Janover ("Janover"), an LDTC for Ridgewood, reported that M.E.'s test scores on the California Achievement Test ("CAT") dropped precipitously between April 1989 and April 1990. In addition, Frederika Shpetner, an LDTC, reviewed M.E.'s school records and noted that there had been a significant decline in M.E.'s national percentile ranks in most subjects.
In addition, despite M.E.'s significant academic problems, he received little more than Basic Skills Instruction three times a week. The evidence has established that each program devised for the school years 1988-89, 1989-90, and 1990-91, were not geared to confer a meaningful educational benefit upon M.E. Because appropriateness is determined prospectively, Ridgewood cannot be held accountable for the failure of M.E.'s first academic year, as it must be given a reasonable period of time to have observed M.E. and assess his academic needs. Accordingly, the Court finds that Ridgewood did not provide M.E. with a free appropriate public education for the school years of 1989-90 and 1990-91.
1. Compensatory Education
The next task is to determine whether M.E. is entitled to compensatory education for this time period. IDEA ensures a free appropriate public education for a student until the age of twenty-one. See 20 U.S.C. § 1412(2)(B). Compensatory education permits a disabled student to continue beyond age twenty-one in order to make up for the past inappropriate public education. See Ridgewood, 172 F.3d at 249 (citing M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 395 (3d Cir. 1996)). The proper inquiry is whether the education the student received was inappropriate; not whether the IEP itself was inappropriate. See id. at 249-50. This is important where, as here, the school did not classify M.E. and provide an IEP until 1995. The current standard for an award of compensatory education is whether "the school knows or should know that the student is receiving an inappropriate education." Id. at 250 (citingM.C., 81 F.3d at 396).
In M.C. v. Central Regional Sch. Dist., 81 F.3d 389, 397 (3d Cir.),cert. denied, 519 U.S. 866, 117 S.Ct. 176, 136 L.Ed.2d 116 (1996), the Third Circuit summarized the compensatory analysis as follows:
[A] school district that knows or should know that a child has an inappropriate IEP or is not receiving more than a de minimis educational benefit must correct the situation. If it fails to do so, a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem.
Notwithstanding M.E.'s academic difficulties during this time period, it is the conclusion of this Court that M.E. is not entitled to compensatory education for the school years 1989-90 and 1990-91. Ridgewood has demonstrated by a preponderance of the evidence that it could not have known that M.E.'s education during this time period was inappropriate. None of M.E.'s witnesses, including Dr. Balaban, testified to any fact which shows that Ridgewood should have known at an earlier date that M.E.'s education was inappropriate. It was not until later, when Ridgewood actually evaluated M.E. in 1991 and 1994 and failed to classify him, that Ridgewood should have been alerted to the possibility that M.E. was disabled and that his educational program was not appropriate. Therefore, M.E. is not entitled to compensatory education for the years 1989-90 and 1990-91.
B. 1991-95
As a result of the March 1991 evaluation, Ridgewood's CST concluded that M.E. was not classifiable for special education under the New Jersey state guidelines. Ridgewood's CST did, however, recommend that M.E. receive increased multi-sensory support to improve his reading skills. M.E. also attended Basic Skills Instruction three times a week. His May 1991 CAT scores continued to demonstrate the ineffectiveness of Ridgewood's educational approach: fourth percentile in comprehension and total reading, second percentile in word analysis, seventh percentile in vocabulary and third percentile in spelling when compared to his third grade peers.
M.E.'s educational program and academic problems continued in the fifth grade, 1992-93. By the sixth grade, 1993-94, M.E.'s parents had to read homework assignments to him in order for him to keep up with the homework. Finally, Ridgewood agreed to evaluate M.E., and conducted evaluations in May and June 1994. Again, the Ridgewood CST concluded that M.E. was not classifiable under New Jersey guidelines.
During the seventh grade year, 1994-95, M.E.'s poor performance continued. He failed English every marking period and took incomplete grades in Latin, Pre-Algebra, Science 7 and Social Studies. In November 1994, Ridgewood agreed to have an independent CST, Bergen Independent Child Study Team, evaluate M.E. after M.E.'s parents filed for an administrative hearing. The Bergen Independent CST found that M.E.'s intellectual/cognitive ability was at the 99th percentile. His functioning in writing, spelling and language mechanics was only at the 11th percentile, and his composite reading score was at the 30th percentile. The Bergen CST concluded that M.E. had a learning disability in reading and writing, identified as dyslexia, a form of language-based learning disability manifested by difficulty with various forms of language including reading, writing and spelling.
On March 17, 1995, Ridgewood finally decided to classify M.E. as perceptually impaired. Despite M.E.'s classification, Ridgewood did not provide M.E. with an IEP until November 1995. Thus, through the 1994-95 school year, Ridgewood did not implement an IEP.
The record reflects that M.E.'s parents objected to the first IEP proposed by Ridgewood.
From 1991 to November 1995, M.E. suffered from learning disabilities but did not receive the additional educational support necessary to confer upon him a "meaningful educational benefit." Thus, M.E. did not receive the requisite individualized educational benefits necessary in light of his disability and potential. Indeed, the educational program provided by Ridgewood from 1991 to 1995 was inadequate. During this period, M.E. still received little more than increased multi-sensory support and Basic Skills Instruction three times a week. Based on the foregoing, it is clear that Ridgewood's educational program was not tailored to confer a meaningful educational benefit on M.E. during this period, and therefore he did not receive a free appropriate public education during the school years of 1991-92, 1992-93, 1993-94, 1994-95.
1. Compensatory Education
Next the Court must determine whether M.E. is entitled to compensatory education for these years. The relevant inquiry is whether Ridgewood knew or should have known that the student was receiving an inappropriate education.
It is the opinion of this Court that Ridgewood should have known that M.E. was receiving an inappropriate education by the 1991-92 school year. This finding, of course, is predicated on this Court's conclusion that Ridgewood should have realized that M.E. suffered from a learning disability much sooner than it did, and, concomitantly, should have classified M.E. under IDEA at a much earlier date.
The Ridgewood CST evaluated M.E. two times over the course of several years but each time concluded that he was not eligible for special education classification. Then, in 1995, Ridgewood evaluated M.E. again on the recommendation of the independent Bergen CST and agreed that M.E. was perceptually impaired. The indicators of M.E.'s learning disabilities that the independent Bergen CST seized upon in concluding M.E. was learning disabled were: (1) a significant discrepancy between intellectual/cognitive abilities and actual achievement in reading and writing; (2) significant intra-achievement discrepancy between math and broad knowledge; (3) significant discrepancy between oral language ability and written language disorder; and (4) significant intra-cognitive discrepancy between broad cognitive ability and dysfunction in processing speed and significantly slow recall/retrieval of basic information. The record demonstrates that these very indicators, especially the discrepancy between intellectual/cognitive abilities and actual achievement in reading and writing, were readily apparent and recognized by Ridgewood as early as the 1991-92 school year. Indeed, Dr. Balaban testified that clear CST findings dating back to M.E.'s third grade year (in 1991) supported the conclusion that M.E. suffered from a disability.
Based on the record, it appears that by the 1991-92 school year Ridgewood recognized a severe discrepancy between M.E.'s CAT testing scores and his intellectual ability. In 1991, a report concerning M.E. written by Ridgewood LDTC Carolyn Janover demonstrated this discrepancy. In addition, Janover reported that M.E.'s self-esteem had continued to decline. Moreover, when M.E. was psychologically evaluated, Lorraine Zak ("Zak") reported that M.E. obtained an IQ score of 129, placing him in the superior 97th percentile. Zak also confirmed M.E.'s anxiety and self-esteem problems. Further, during the 1991-92 school year M.E.'s fourth grade teacher reported that M.E.'s writing, reading and basic math needed special attention, and that assistance from a basic skills instructor several times a week was not sufficient.
This evidence indicates that Ridgewood should have known as early as the 1991-92 school year that M.E. suffered from a learning disability and required additional educational benefits. It thus follows that Ridgewood then should have known as early as the 1991-92 school year that M.E.'s educational program at the time was inappropriate and insufficient to address his learning disability. Because M.E. continued in essentially the same regular education environment without an IEP until he was classified in March of 1995, the same holds true for the school years 1992-93, 1993-94, and 1994-95. Accordingly, the Court awards M.E. compensatory education for the school years of 1991-92, 1992-93, 1993-94, and 1994-95.
As a consequence of this finding, N.E. is also entitled to reimbursement for tutoring expenses. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). District courts enjoy broad discretion in fashioning discretionary equitable relief under IDEA, including "the appropriate and reasonable level of reimbursement that should be required." See id. at 16. Total reimbursement is not appropriate if "the cost of the private education was unreasonable." See id. M.E. seeks reimbursement for $6,400 in tutoring expenses. An affidavit by Jessie Richards, one of M.E.'s tutors between 1989 and 1992, supports M.E.'s claim for tutoring expenses. Richards charged the very reasonable amount of $25 per hour as a tutoring fee, and provided services for M.E. for three hours a week for forty-seven weeks between March 1991 and June 1992. This amounts to a total of $3,525, which this Court finds is a reasonable amount. The Es expended additional money for other tutors but were unable to provide the proper proof of such expenditures. Therefore, N.E. is awarded $3,525 for reimbursement of tutoring expenses.
It is unclear what age M.E. is now, although it appears that he may have just finished the twelfth grade. It is also unclear what, if any, continuing education M.E. requires. Therefore, at this juncture the Court will award M.E. a duration of four years of compensatory education. The Court will retain jurisdiction over this case and the parties will schedule a hearing in the near future when assessment of the form and nature of M.E.'s relief would be appropriate.
C. The 1995-96 IEP
First, it should be noted that no IEP was implemented between March 1995 and November 1995. N.E. seeks compensatory education for this eight month period. "[A] school district, however, may not be able to act immediately to correct an inappropriate IEP; it may require some time to respond to a complex problem." M.C., 81 F.3d at 397. Thus, a student is "entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem." Id.
In this case, M.E.'s parents objected to the initial IEP. Although M.E.'s parents were entitled to object to the IEP, it is likely that this was at least part of the reason for the eight month delay in implementing the final IEP. In addition, the 1995-96 IEP was the first IEP Ridgewood developed for M.E., so it stands to reason that Ridgewood wished to carefully consider all factors and information readily available in order to create this IEP. In light of the surrounding circumstances, it is the Court's opinion that an eight month delay in implementing the first IEP, which included the summer months, was not unreasonable. Therefore, M.E. is not entitled to compensatory education for this eight month period.
The IEP that Ridgewood eventually developed in November 1995 provided that M.E. receive thirty minutes a day of one-on-one instruction in reading and spelling using the Orton-Gillingham approach. M.E. was also to receive Resource Center English and supplementary instruction in science and social studies. The IEP further provided M.E. with much needed one-on-one instruction. Just as important, Orton-Gillingham approach was to be used by all teachers, which Dr. Balaban testified is a recognized approach for dyslexic students. Although it is noted that Ridgewood has the burden to prove it complied with IDEA, none of M.E.'s witnesses took issue with the 1995-96 IEP. In light of M.E.'s considerable potential and learning capability, and based on the evidence, it appears that the 1995-96 IEP was tailored to confer a meaningful educational benefit on M.E. That the IEP may not have succeeded in that venture is of no moment. See Carlisle, 62 F.3d at 530 ("[A]ppropriateness is judged prospectively so that any lack of progress under a particular IEP, assuming arguendo that there was no progress, does not render that IEP inappropriate."). Therefore, insofar as the 1995-96 IEP conferred upon M.E. a meaningful educational benefit, the 1995-96 IEP was appropriate.
As a result, the claims for compensatory education are denied as to the 1995-96 time period.
D. The 1996-97 IEP
All parties agree that M.E. is a bright child with considerable potential. He routinely scored high on the intellectual/cognitive ability tests. Yet, in light of the evidence and considering M.E.'s potential, it is the conclusion of this Court that Ridgewood has met its burden of proving that the 1996-97 IEP was sufficiently tailored to M.E.'s individual needs so as to confer upon M.E. a meaningful educational benefit.
Dr. Balaban, who testified on behalf of M.E. and whose testimony the ALJ solely relied upon, even agreed that the substantive objectives of M.E.'s English class in the 1996-97 IEP were appropriate. See October 2, 1996 Transcript ("October Tr.") at 7. Dr. Balaban was only concerned that the substantive objectives were not as comprehensive as her recommendation. See id. Yet, IDEA does not require that the IEP be as comprehensive as Dr. Balaban wished; rather, it requires that the IEP confer a meaningful educational benefit.
The provisions of the 1996-97 IEP were fairly comprehensive in any event. It provided that M.E. attend Resource Center classes in all academic areas, including biology, English, world history, and math. These Resource Center classes would utilize a multi-sensory learning approach. Indeed, Dr. Balaban agreed that M.E. would benefit in the four resource room classes included in the IEP. See September 26, 1996 Transcript ("Sept. Tr.") at 136. It included two periods of daily supplemental instruction with an instructor trained in an Orton-Gillingham reading program, plus extra supplemental instruction when his schedule permitted, and provided for speech/language therapy one period per week to improve M.E.'s writing skills. Dr. Balaban admitted that the two supplemental instruction periods per day would be beneficial to M.E. See Sept. Tr. at 137.
The IEP also provided that M.E. be mainstreamed in regular classes such as physical education, health, and other electives. Dr. Balaban approved of this approach, testifying that this type of mainstreaming for M.E. was "the way to go" and would benefit M.E. See Sept. Tr. at 137.
Thus, it appears that even M.E.'s expert agreed that, while the 1996-97 IEP may not have been "perfect" or fully "comprehensive," it still was crafted in a way that would confer a meaningful educational benefit upon M.E. and was appropriate. Therefore, upon review of the evidence and in light of M.E.'s potential, it is the conclusion of this Court that Ridgewood has proven by a preponderance of the evidence that the ALJ's decision regarding the 1996-97 IEP was erroneous. Therefore, the ALJ's decision that the 1996-97 IEP was inappropriate is REVERSED.
As a result, the related claim for compensatory education is denied as to the 1996-97 time period.
II. Private Placement at the Landmark School
The Supreme Court in Florence, determined that a disabled student may be entitled to reimbursement if "a federal court concludes both that the public placement violated IDEA and that the [proposed] private school placement was proper under [IDEA]." 510 U.S. at 15. Thus, a student is entitled to reimbursement of private placement costs if (1) the court determines the student's IEP is inappropriate and (2) the student demonstrates that the private placement he seeks is proper. See Ridgewood, 172 F.3d at 248 (citing Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)). "A private placement may be proper if it is appropriate and provided in the least restrictive educational environment." Id. (citing Oberti v. Board of Educ., 995 F.2d 1204, 1213 (3d Cir. 1993)). "Residential placement is, by its nature, considerably more restrictive than local extended day programming." Carlisle, 62 F.3d at 534.
To determine whether private placement is appropriate, the Court utilizes the same "meaningful educational benefit" test used to assess the appropriateness of the IEP. See Ridgewood, 172 F.3d at 249 n. 8. Indeed, the fact that the private placement fails to satisfy the least restrictive environment requirement, or is more restrictive than public placement, does not prevent the student from receiving reimbursement. See Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); Ridgewood, 172 F.3d at 249 (citing Cleveland Heights-University Heights City Sch. Dist. v. Boss, 144 F.3d 391, 400 (6th Cir. 1998)). Rather, the relevant inquiry is whether the private placement provides the least restrictive appropriate educational environment. See Ridgewood, 172 F.3d at 249. (citations omitted).
The Court has found that the 1995-96 and the 1996-97 IEPs were appropriate, and the appropriateness of the 1996-97 IEP was the actual issue before the ALJ. However, the Court also concluded that M.E.'s education during the school years 1989-90, 1990-91, 1991-92, 1992-93, 1993-94 and 1994-95 was inappropriate. The ALJ below concluded that Landmark would remain appropriate until Ridgewood offered an appropriate IEP, which, pursuant to the aforementioned findings, occurred in the school year 1995-96. The evidence supports the ALJ's finding. In addition, although the private placement in this case might have been somewhat restrictive, Ridgewood has failed to refute that it was nonetheless the least restrictive appropriate environment.
Thus, an award for reimbursement of M.E.'s Landmark tuition is based not on the ALJ's finding that the 1996-97 IEP was inappropriate, but rather on this Court's conclusion that M.E.'s education during the school years 1989-90, 1990-91, 1991-92, 1992-93, 1993-94 and 1994-95 was inappropriate. T herefore, N.E. is entitled to tuition reimbursement in light of the findings with respect to the inappropriate education offered from the 1989-90 school year to the 1994-95 school year. From the record it appears that Ridgewood did pay for M.E.'s Landmark tuition during this appeal. However, it is unclear whether further reimbursement of tuition is necessary. Accordingly, M.E. is directed to file a certification and supporting affidavits concerning the remaining tuition, if any, required for reimbursement by Ridgewood.
The Es also seek reimbursement for room and board, transportation costs, and certain miscellaneous filing and application fees. Reimbursement for room and board is required where residential placement is required. See Township of Ocean Bd. of Educ. v. H.O., 1990 WL 118288, *8 (D.N.J. Aug. 6, 1990) ("If it is determined that residential placement is required to provide an appropriate education, then room and board must be reimbursed."); Vander Malle v. Ambach, 667 F. Supp. 1015, 1038 (S.D.N.Y. 1987). See also 34 C.F.R. § 300.302. The New Jersey Supreme Court has denied room and board reimbursement where residential placement was deemed unnecessary. See Lascari v. Bd. of Educ., 116 N.J. 30, 52-54 (1989).
In this case, the ALJ concluded that M.E. does not require residential placement. The ALJ also found that the residential placement at Landmark was not the least restrictive, and that Ridgewood should reimburse M.E.'s parents for tuition costs only. These conclusions are supported by substantial credible evidence, as all the expert witnesses, including Dr. Balaban, agreed that M.E. did not require residential placement. Therefore, the Es are not entitled to room and board costs, transportation costs, or other costs except for tuition reimbursement.
III. Rehabilitation Act Claims
M.E. also contends that Ridgewood violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., by failing to identify him as learning disabled, failing to inform his parents of Ridgewood's IDEA duties, and failing to provide him with a free appropriate public education.
The Rehabilitation Act prohibits discrimination based on disability in schools receiving federal funds. See Ridgewood, 172 F.3d at 253. To establish a violation of § 504, a plaintiff must prove that (1) he is disabled as defined by the Act; (2) he is "otherwise qualified" to participate in school activities; (3) the school or the board of education receives federal financial assistance; and (4) he was excluded from participation in, denied benefits of, or subject to discrimination at, the school. See W.B. v. Matula, 67 F.3d 484, 492 (3d Cir. 1995) (quotingNathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991)). It must also be shown that defendants know or should be reasonably expected to know of the student's disability, although a plaintiff need not prove intentional discrimination. See Ridgewood, 172 F.3d at 253; Matula, 67 F.3d at 492.
There are few differences between the provisions of IDEA and those of § 504. See Ridgewood, 172 F.3d at 253; Matula, 67 F.3d at 492-93. Both require school districts to "provide a free appropriate education to each qualified handicapped person in [its] jurisdiction." Ridgewood, 172 F.3d at 253 (quoting Matula, 67 F.3d at 493). The Third Circuit has held that a school's failure to notify parents of its IDEA duties could violate § 504, that § 504 imposes a "child find" duty, and that the failure to provide a free appropriate public education could violate § 504. See Ridgewood, 172 F.3d at 253.
In this case, the evidence indicates that Ridgewood notified the Es of its IDEA responsibilities. In fact, Ridgewood has demonstrated that it provided the Es with a booklet containing information about IDEA and notifying the parents of their rights under IDEA. In fact, as the record reflects, Ridgewood customarily provided all parents with this informational packet.
As to the "child find" duty § 504 imposes, this responsibility requires a school to identify a disabled child "within a reasonable time after school officials are on notice of behavior that is likely to indicate a disability." Id. (quoting Matula, 67 F.3d at 500-01). Here, the record establishes that Ridgewood failed to discharge its "child find" duty with respect to M.E. Ridgewood evaluated M.E. in 1991 and 1994, but declined to classify him each time. Dr. Balaban testified that certain CST findings dating back as far as 1991 indicated that M.E. was disabled and required special education. Glaser, an LDTC, also evaluated M.E. in 1990 and concluded that he probably suffered from a learning disability. Moreover, Ridgewood knew of the growing disparity between M.E.'s intellectual/cognitive ability and his academic performance, plus his dwindling self-esteem. Ridgewood was on notice of certain facts and behavior as early as 1991 — and undoubtedly by 1994 — which strongly suggested that M.E. was disabled, and it is reasonably expected that it should have known of his disability. Ridgewood did not do so until March 1995, and is therefore liable under § 504.
Likewise, Ridgewood is liable under § 504 for failing to provide M.E. with a free appropriate public education, in light of this Court's previous finding that Ridgewood failed to provide M.E. with a free appropriate public education during the school years 1989-90, 1990-91, 1991-92, 1992-93, 1993-94, and 1994-95. District courts have broad discretion in fashioning relief under § 504. See Lengen v. Dep't of Transp., 903 F.2d 1464, 1468 (11th Cir. 1990). However, no award is necessary here because the § 504 claim will be entirely satisfied by the Court's rulings regarding M.E.'s IDEA claims and the relief awarded M.E. as a result. See Wayne County Regional Educ. Serv. Agency v. Pappas, 56 F. Supp.2d 807, 821-22 (E.D.Mich. 1999) (relief for § 504 violation unnecessary where relief awarded for IDEA violation). Thus, any award based on § 504 would be duplicative and unfair to Ridgewood.
IV. Attorney's Fees and Costs as the Prevailing Party
M.E.'s parents represented themselves and M.E. before the ALJ at the administrative hearing. They did, however, consult an attorney, G. Emerson Dickman, III ("Dickman"), during the hearing to advise them as to the most appropriate manner in which to handle the administrative hearing. M.E.'s parents seek to recover Dickman's fee of $540 and reimbursement for their own legal fees as the "prevailing" party in this matter.
Attorney's fees have been denied to pro se litigants under various civil rights laws. See Kay v. Ehrler, 499 U.S. 432, 438, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991) (holding that a pro se plaintiff, even one who is an attorney, is not entitled to attorneys' fees under Civil Rights Attorney's Fees Awards Act); Pitts v. Vaughn, 679 F.2d 311, 313 (3d Cir. 1982) (holding that a non-lawyer, pro se litigant is not entitled to attorney's fees under § 1988); Wright v. Crowell, 674 F.2d 521, 522 (6th Cir. 1982) (per curiam) (same); BD v. DeBuono, 193 F.R.D. 117, 138 (S.D.N.Y. 2000) (applying Kay to deny attorney's fees to pro se litigant in § 1983 case); Jackson v. Edwards, 2000 WL 782947, *5 (S.D.N.Y. June 16, 2000) (holding that pro se litigant is not entitled to attorney's fees); Levine v. Heffernan, 691 F. Supp. 173 (W.D.Wis. 1988) (holding that pro se litigant is not entitled to attorney fees under 42 U.S.C. § 1988); Lawrence v. Staats, 586 F. Supp. 1375 (D.D.C. 1984) (same). The Supreme Court in Kay explained its reasoning as follows:
A rule that authorizes of counsel fees to pro se litigants — even if limited to those who are members of the bar — would create a disincentive to employ counsel whenever such a plaintiff considered himself competent to litigate on his own behalf. The statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case.Kay, 499 U.S. at 438. Such reasoning is particularly applicable in an IDEA case, which can be very complicated and requires a specific expertise in that subject.
Several courts have applied Kay in IDEA cases to deny claims for attorney's fees by pro se litigants. In Woodside v. Sch. Dist. of Philadelphia Bd. of Educ., 2000 WL 92096 (E.D.Pa. Jan. 27, 2000), the court was faced with the very same situation and noted that the Third Circuit had yet to determine whether parents who represent themselves and their child in a due process administrative action under IDEA are entitled to attorney's fees. See Woodside, 2000 WL 92096, *4. There the court applied Kay and held that a father is not entitled to attorney's fees under the IDEA for the representation he provided for his son at an administrative hearing. See id. Other courts have agreed. See Doe v. Bd. of Educ. of Baltimore County, 165 F.3d 260, 261-62 (4th Cir. 1998),cert. denied, 119 S.Ct. 2049 (1999) (affirming district court's denial of attorney's fees for services performed by attorney-parent for child in administrative proceedings convened under IDEA); Rappaport v. Vance, 812 F. Supp. 609, 611 (D.Md. 1993) (applying Title VII case law to denypro se litigant attorney's fees under IDEA). The Court is persuaded by the case law and finds no reason why the Kay rationale should not apply in this case. Therefore, the Es are not entitled to an award of attorney's fees which arose out of the administrative hearing. The Es also seek an award for costs related to the administrative hearing. Specifically, M.E.'s parents request expert witness fees for three witnesses who testified at the administrative hearing: Dr. Balaban, Howard Glaser, and Bruce Stoddard. The statute provides that a prevailing party is entitled to reasonable attorney's fees and costs. See 20 U.S.C. § 1415(i)(3)(B). An award of attorney's fees and costs is warranted where the plaintiff "prevails" or gains merits-based relief that "`materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.'" D.R. v. East Brunswick Bd. of Educ., 109 F.3d 896, 902 (3d Cir. 1997) (quoting Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). "To qualify as a `prevailing party' within the meaning of the provision, a litigant must demonstrate that he obtained relief on a significant claim in the litigation, that such relief effected a material alteration in his legal relationship with the defendant and that the alteration is not merely technical or de minimis in nature." Holmes v. Millcreek Tp. Sch. Dist., 205 F.3d 583, 593 (3d Cir. 2000). In addition, a plaintiff seeking attorney's fees and costs must show that there is a "causal connection between the litigation and the relief from the defendant." Id. (quoting Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 910 (3d Cir. 1985)).
In light of the above findings that N.E. is entitled to compensatory education and reimbursement, it cannot be argued that N.E. partially prevailed in this matter. Although this Court reversed the ALJ's finding as to the appropriateness of the 1996-97 IEP, which was the main issue before the ALJ, this Court has also found that Ridgewood did not comply with IDEA and the Rehabilitation Act in previous years. Thus, while N.E. may not have succeeded with regards to the 1996-97 IEP, N.E. has won relief in the form of compensatory education for the school years of 1991-92, 1992-93, 1993-94, and 1994-95. Moreover, although the expert testimony at the ALJ hearing concerned only the 1996-97 IEP, which this Court found to be appropriate, those testimonies were utilized by this Court in assessing M.E.'s education for the previous school years of 1991-92, 1992-93, 1993-94, and 1994-95. As a result, the testimony of N.E.'s three experts helped N.E. to obtain the compensatory education relief this Court has awarded.
N.E. was seeking compensatory education and reimbursement for private tutoring and tuition at the Landmark school; this Court awarded N.E. a portion of the relief requested. Therefore, the parents have achieved part of the relief they sought. This judgment clearly has effected a material alteration between the parties, and the relief N.E. receives is directly connected to this litigation.
Courts have awarded expert witness fees to prevailing parties in IDEA cases. See Arons v. New Jersey State Bd. of Educ., 842 F.2d 58, 62 (3d Cir.), cert. denied, 488 U.S. 942, 109 S.Ct. 366, 102 L.Ed.2d 356 (1988); B.K. v. Toms River Bd. of Educ., 998 F. Supp. 462, 473-74 (D.N.J. 1998); Field v. Haddonfield Bd. of Educ., 769 F. Supp. 1313, 1323-24 (D.N.J. 1991); Chang v. Bd. of Educ. Of Glen Ridge Tp., 685 F. Supp. 96, 97-98, 100 (D.N.J. 1988). Nonetheless, such fees must be properly documented and must also be reasonable under the circumstances.See B.K., 998 F. Supp. at 473 n. 14; Verginia McC v. Corrigan-Camden Indep. Sch. Dist., 909 F. Supp. 1023, 1033 (E.D.Tex. 1995); Bailey v. Dist. of Columbia, 839 F. Supp. 888, 892 (D.D.C. 1993); Kattan v. Dist. of Columbia, 1991 WL 222312, at * 3 (D.D.C. Oct. 17, 1991), aff'd, 995 F.2d 274 (D.C. Cir. 1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 71 (1994). Whether to award fees and costs is within the discretion of the district court. See Chang, 685 F. Supp. at 97-98.
Here, the Es have provided the proper documentation, having submitted bills from Dr. Balaban totaling $1,700; bills from LDTC Howard Glaser totaling $2,700; and bills from Bruce Stoddard totaling $1,475. The expert fee total request is $5,875. It is the opinion of the Court that this award is reasonable. Although M.E.'s parents have been awarded substantial relief, they have not succeeded on all of their claims, so their award should be decreased accordingly. See Field, 769 F. Supp. at 1322. As for N.E.'s compensatory education claims, which is the primary relief sought, N.E. was successful on the majority of those claims. Therefore, the Court finds it to be fair and equitable that N.E.'s expert fee award is discounted by 25%, and awards N.E. expert fees in the reasonable amount of $4,406.25.
The Es may also recover the costs of photocopies as outlined in the federal costs statute, 28 U.S.C. § 1920. See Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 931 F. Supp. 474, 483 (S.D.Tex. 1995);Verginia McC, 909 F. Supp. at 1033. The Es submitted supporting documentation indicating they spent $414.33 for photocopying during the administrative hearing.
This amount is reasonable, but must be discounted 25% as well. Thus, the Es are awarded $310.75 for copying costs.
M.E. and his parents were represented by counsel in this matter before the Court, and they have indicated they will seek attorney's fees and costs at the appropriate time. Under the applicable statutory provision, 20 U.S.C. § 1415(e)(4)(B), a plaintiff may be awarded fees and costs when he is the prevailing party in the litigation. The language of the fee-shifting provision is permissive, rather than mandatory. See Holmes, 205 F.3d at 593.
The Rehabilitation Act also contains a provision for the award of attorney's fees and costs to the prevailing party. See 29 U.S.C. § 794a(b). This provision is construed in the same manner as the identical language in the Civil Rights Attorney's Fee Awards Act, 42 U.S.C. § 1988.SeeDisabled in Action of Pennsylvania v. Pierce , 789 F.2d 1016, 1018 (3d Cir. 1986). The Court need not address attorney's fees and costs under the Rehabilitation Act because M.E. will receive attorney's fees and costs based on IDEA.
As set forth above, N.E. is a prevailing party in this matter. Therefore, N.E. is entitled to reasonable attorney's fees and costs related to this case. Accordingly, N.E. is directed to submit to the Court a certification and supporting affidavits concerning the fees and costs it seeks in this matter, and the reasonableness of such fees and costs. V. Claims Against Municipal Officers in their Individual Capacities
N.E.'s attorney shall submit proof of fees and costs consistent with the Third Circuit's recent opinion in Holmes , 205 F.3d at 595 .
Municipals officers sued in their individual capacities enjoy qualified immunity if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A right is clearly established if "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523, (1987). By contrast, if "the law is not established clearly when an official acts, he is entitled to qualified immunity because he `could not reasonably be expected to anticipate subsequent legal developments.'" Matula, 67 F.3d at 499 (quoting In re City of Philadelphia, 49 F.3d 945, 961 (3d Cir. 1995)). On the other hand, the "clearly established" standard does not require "`precise factual correspondence between relevant precedents and the conduct at issue.'" In re City of Philadelphia, 49 F.3d at 970 (citation omitted).
To defeat the qualified immunity defense of a municipal officer sued in his individual capacity, a plaintiff must demonstrate that "`the particular actions taken by defendant were impermissible under law established at that time.'" Matula, 67 F.3d at 500 (quoting P.C v. McLaughlin, 913 F.2d 1033, 1040 (2d Cir. 1990)).
The facts of this case are distinguishable from what occurred in theMatula case. In Matula, the school district's CST evaluated the student and found that he had Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder ("ADHD") and was eligible for § 504 services, but nonetheless refused to classify the child and provide services. Prior to the evaluation, a teacher actually informed the parent that the child might have ADHD, yet no evaluation was conducted. In fact, the director of the CST did not even believe that ADHD qualified a child for special services under IDEA or § 504. In addition, an independent evaluation conducted in July 1992 revealed that the child suffered from not only ADHD but Tourette's Syndrome and a severe form of obsessive-compulsive disorder as well, yet no IEP was provided until April 1993. See id. The Third Circuit in Matula also concluded that a reasonable school official could believe that a delay of six months, from notice and personal observation of behavior indicating a qualifying disability until referral for evaluation, could violate the "child find" duty. See id. at 501. Accordingly, the court held that the defendant school officials were not entitled to qualified immunity as a result. See id. at 500.
The "child find" duty requires the school demonstrate that "all children residing in the State who are disabled, regardless of the severity of their disability, and who are in need of special education and related services are identified, located, and evaluated." 20 U.S.C. § 1412(2)(C); 34 C.F.R. § 300.128(a)(1). See also Ridgewood , 172 F.3d at 253 (holding that § 504 imposes a "child find" duty, or the duty to identify a disabled child "within a reasonable time after school officials are on notice of behavior that is likely to indicate a disability.") (quoting Matula , 67 F.3d at 50001).
The conduct of the Ridgewood officials is clearly distinguishable from that of the Matula school officials. In this case, the Ridgewood officials held a good faith belief that M.E. did not meet the necessary standards to be classified as requiring special education services. Ridgewood agreed to evaluate M.E. and did so in 1991 and 1994. By contrast, the Matula officials refused to even conduct an evaluation, and, after they finally did evaluate the child, knew the student needed services but not only failed to provide them for an extended period of time, they refused to classify the child. Here, although there was a delay in crafting an IEP for M.E. from March 1995 to November 1995, Ridgewood classified M.E., acknowledged that he required special services, and created an IEP. Indeed, Ridgewood established that the delay was reasonable. Moreover, the ALJ in Matula found that the school officials had lodged "seemingly endless attacks" on the parent. No such egregious conduct is evidenced in this case. Therefore, it cannot be said that the conduct of the Ridgewood officials violated rights of which a reasonable person would have known. The third-party defendants are therefore entitled to qualified immunity and judgment on all of the counts in the Amended Third-Party Complaint, including the state law claims. See Lloyd v. Borough of Stone Harbor, 179 N.J. Super. 496, 517 (App.Div. 1981) (holding that "the immunities of municipalities and their officials sued directly under our Constitution are identical to those provided by federal law.").
CONCLUSION
For the foregoing reasons, the motion of defendant/third-party plaintiff N.E. for judgment is GRANTED IN PART and DENIED IN PART, and the motion of plaintiff Ridgewood Board of Education and the third-party defendants for judgment is GRANTED IN PART and DENIED IN PART. The Court enters judgment as follows:
1. Defendant/third-party plaintiff N.E. is awarded four (4) years of compensatory education, representing the school years 1991-92, 1992-93, 1993-94, and 1994-95; the Court will retain jurisdiction over this matter, and the parties are to appear before the Court at the appropriate time to assess the form and nature of relief required;
2. Defendant/third-party plaintiff N.E. is awarded reasonable attorney's fees and costs as the prevailing party in this matter, in an amount subject to the Court's approval; defendant/third-party plaintiff N.E. is directed to submit to the Court a certification and supporting affidavits in support of an award for attorney's fees and costs;
3. Defendant/third-party plaintiff N.E. is awarded reimbursement for tutoring expenses in the amount of $3,525;
4. Defendant/third-party plaintiff N.E. is awarded reimbursement for tuition of the Landmark school; defendant/third-party plaintiff N.E. is directed to submit to the Court a certification and supporting affidavits in support of an award for reimbursement of tuition;
5. Defendant/third-party plaintiff N.E. is awarded expert fees in the amount of $4,406.25, and photocopying costs amounting to $310.75.
6. All other relief is hereby DENIED.
An appropriate Order accompanies this Letter Opinion.