NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2424-12T1
J.T., ON HER OWN BEHALF, ON BEHALF OF HER MINOR CHILD, APPROVED FOR PUBLICATION A.T., AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, November 24, 2014
Plaintiffs-Appellants, APPELLATE DIVISION
v.
DUMONT PUBLIC SCHOOLS, THE DUMONT PUBLIC SCHOOLS BOARD OF EDUCATION, EMANUELE TRIGGIANO, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE DUMONT PUBLIC SCHOOLS, AND PAUL BARBATO, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF SPECIAL SERVICES FOR THE DUMONT PUBLIC SCHOOLS,
Defendants-Respondents.
____________________________________________________
Argued April 1, 2014 – Decided November 24, 2014
Before Judges Messano, Hayden, and Lisa.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-139-12.
John D. Rue argued the cause for appellant (Law Offices of John Rue, attorneys; Maryam Jazini Dorcheh (White & Case), Jack E. Pace, (White & Case) of the New York bar, admitted pro hac vice, and Peter E. Wilhelm (White & Case) of the New York bar, admitted pro hac vice, on the brief). Eric L. Harrison argued the cause for respondents (Methfessel & Werbel, attorneys; Mr. Harrison and Boris Shapiro, on the brief).
Ruth Deale Lowenkron argued the cause for amici curiae Council of Parent Attorneys and Advocates, Disability Rights New Jersey, Education Law Center, New Jersey Special Education Practitioners, Statewide Parent Advocacy Network, and the Special Education Clinic of Rutgers University - Newark (Education Law Center, attorneys; Ms. Lowenkron, on the brief).
The opinion of the court was delivered by
HAYDEN, J.A.D.
The issue before us is whether one component of an
appropriate special education placement violates the Law Against
Discrimination's (LAD), N.J.S.A. 10:5-1 to -42, prohibition
against discrimination due to a disability. Plaintiff J.T., on
behalf of herself, her minor son A.T., and all Dumont students
similarly situated, appeals from the Chancery Division order
granting summary judgment in favor of defendants. Plaintiffs
allege that defendants failed to accommodate the putative class 1
members' disabilities in violation of the LAD by refusing to
1 The complaint defines the putative class as all "kindergarten students in the District, or who may be kindergarten students in the District in the future, [who] are classified as requiring special education services, or who may be so classified in the future, and [who] reside within the town of Dumont." This class consisted of at least ninety-six students. The complaint alleged that A.T.'s claims are "typical of those of the [c]lass as a whole."
2 A-2424-12T1 provide the special education services that the special needs
students require in their neighborhood schools. Defendants are
the Dumont school district, the Board of Education, the district
superintendent, and the director of special services. Because
plaintiffs did not demonstrate they were deprived of a benefit
due to a disability and thus failed to make a prima facie
showing of disability discrimination under the LAD, we affirm.
I.
The record reveals that J.T. and her minor son A.T. resided
in Dumont, a town of about two square miles. The school
district of Dumont has four elementary schools: Selzer, Grant,
Honiss, and Lincoln. In both the 2008-2009 and 2009-2010 school
years, about 180 students attended kindergarten within the
district. The school district's policy provided that generally
children were to attend their neighborhood schools. An
exception to the policy was when the child's Individualized
Education Plan (IEP) required special education services that
were provided in a different school.
Beginning in the 2008-2009 school year, the district
offered an inclusion kindergarten class in addition to a self-
contained kindergarten class. The self-contained classroom had
only children whose needs, according to their IEPs, warranted a
full-time special education teacher. The inclusion classroom,
3 A-2424-12T1 on the other hand, had both general education and special
education students who were taught the regular curriculum by a
full-time general education teacher with the part-time
assistance of a special education teacher. The amount of time
that the special education teacher spent in the inclusion
classroom varied according to the combined requirements of the
children's IEPs. Both the inclusion and self-contained classes
were located in the same school building each year.
In each of the 2008-2009 and 2009-2010 school years, four
special needs children were placed in the inclusion kindergarten
classroom as required by their IEPs.2 In the 2010-2011 school
year, only one student with disabilities was in the inclusion
class. Each year during this same period, depending on their
individual educational needs as determined by their IEPs,
several special education children were placed in the self-
contained kindergarten classroom, in out-of-district placements,
or in regular kindergartens in their neighborhood schools
because they needed only support services, not special education
teachers, to carry out their IEPs.3
2 Inclusion classrooms may contain up to eight students with special needs. N.J.A.C. 6A:14-4.6(n). 3 At least one child was in a regular education classroom without special services because his parents declined the inclusion placement in favor of placement in the neighborhood school (continued)
4 A-2424-12T1 When A.T. was three years old, he was diagnosed with
childhood autism, a pervasive developmental disorder. In the
2008-2009 school year, pursuant to his IEP, A.T. attended
preschool in the district's inclusion classroom in Selzer, his
neighborhood school, for half the day and spent the remainder of
the day in an out-of-district self-contained program.
In May 2009, the district personnel and J.T. met to discuss
A.T.'s IEP for his upcoming kindergarten year. J.T. and the
district agreed that A.T. needed some special education
services. The district personnel proposed moving him from a
self-contained class to the district's inclusion class, to be
held in Grant. The inclusion class was taught by a regular
education teacher who followed a regular education curriculum.
The class also had fewer students than a regular education
kindergarten class and provided services according to each
special education student's IEP with the assistance of a part-
time special education teacher.
In contrast, J.T. wanted A.T. to attend a general education
classroom at his home school, Selzer, with the supports provided
in that classroom. The district personnel did not think this
option met A.T.'s special needs; rather, they reasoned that A.T.
(continued) without a special education teacher's services.
5 A-2424-12T1 needed the integrated services, smaller class size, and in-class
special education teacher to enable A.T. to retain and
generalize information in order to meet the goal of readying him
for a regular education classroom for the next year. Although
J.T. did not agree, the final IEP designated A.T.'s educational
placement as the inclusion kindergarten class at Grant.
In June 2009, J.T. filed a due process petition with the
New Jersey Department of Education challenging the
appropriateness of the IEP's inclusion placement at Grant rather
than a regular education placement at Selzer. In September
2009, A.T. began attending the inclusion kindergarten class at
Grant. Shortly thereafter, on September 28, 2009, plaintiffs
filed a class action complaint in federal court alleging
violations of (1) the Individuals with Disabilities Education
Act (IDEA), 20 U.S.C.A. §§ 1400-1485, based on the district's
failure to educate children in the least restrictive
environment, (2) Section 504 of the Rehabilitation Act (RA), 29
U.S.C.A. § 794, due to discrimination against class members, and
(3) the LAD for failing to accommodate class members in their
neighborhood school. In November 2009, plaintiffs withdrew
their due process petition.
While the federal litigation was pending, A.T. completed
his kindergarten year in the inclusion class. The parties do
6 A-2424-12T1 not dispute that A.T. benefitted educationally, emotionally, and
socially from the inclusion placement. For his first grade
year, the parents and district personnel agreed that it was
appropriate to place him in the regular education classroom in
Selzer with some special education services.
After completion of discovery in federal court, both sides
moved for summary judgment. The district court granted summary
judgment in favor of defendants on the IDEA and RA claims,
finding a lack of subject matter jurisdiction because there was
no legally cognizable injury and plaintiffs failed to exhaust
administrative remedies. The court noted that "plaintiffs are
also not claiming that A.T. suffered a deprivation of
educational benefits. Thus, Plaintiffs have not demonstrated
either 'a loss of educational opportunity for the student,' or a
serious deprivation of the parents' 'participation rights,' or a
'deprivation of educational benefits . . . .'" J.T. v. Dumont
Pub. Schs., No. 09-4969 (MAH), 2012 U.S. Dist. LEXIS 42671, at
*34-35 (D.N.J. Mar. 28, 2012) (internal citations omitted).
In finding that plaintiffs failed to establish a concrete
and particularized harm, the court reasoned:
Plaintiffs may not establish their standing based solely on the argument that Dumont committed a procedural violation by failing to consider whether the exact same services should be provided in a child's neighborhood school. Crucially, Plaintiffs have failed
7 A-2424-12T1 to identify, or they have abandoned, assertions that Dumont's policy resulted in the loss of an educational opportunity, seriously deprived parents of participation rights, or deprived students of educational benefits.
[Id. at *42.]
The court also found that plaintiffs' voluntary failure to
pursue their administrative remedies was fatal to their
complaint. According to the court, "[t]he evidence does not
support Plaintiffs' claim that Dumont used the inclusion class
to systematically avoid the IDEA's requirement to individually
consider students' needs when making placement decisions." Id.
at *54. On the issue of whether the placement was the least
restrictive environment, the court pointed out that plaintiffs
and any kindergartener affected by an inclusion placement, "can
[and must] seek redress on this substantive claim through the
administrative process." Id. at *55.
Addressing plaintiffs' claim that placement in the non-
neighborhood school was a violation of the RA, the court found
that "[f]or the same reasons Plaintiffs have failed to show that
they suffered an injury under the IDEA, Plaintiffs have failed
to establish that J.T. has been discriminated against due to his
disability." Id. at *58. The court specifically found that
plaintiffs' RA claim of discrimination due to not attending
one's neighborhood school was based upon the same facts as their
8 A-2424-12T1 IDEA claim. Ibid. Having dismissed the federal claims for lack
of subject matter jurisdiction, the district court declined to
exercise supplemental jurisdiction over the LAD claims and
dismissed them without prejudice.
II.
Shortly after the dismissal of the federal complaint,
plaintiffs filed a civil complaint in the Chancery Division.
The complaint alleged violations of the LAD, including that
defendants discriminated against the putative class members due
to their disabilities by (1) forcing them to receive required
special education services in a school other than their
neighborhood school, (2) failing to consider the placements or
the provision of transportation on an individual basis, and (3)
segregating class members due to their special education needs.
Plaintiffs sought a declaration that defendants had failed to
obey the LAD and asked for an order requiring, among other
relief, that all class members be educated in their neighborhood
school whenever possible, an in-class special education teacher
be furnished in each of the class members' neighborhood school,
and a court-appointed Special Master paid for by the district to
review all IEPs and determine defendants' compliance with these
requirements.
9 A-2424-12T1 After agreeing to rely on the discovery obtained in the
federal case, the parties moved for partial summary judgment as
to liability under the LAD. In analyzing plaintiffs' LAD
disability accommodation claim, the judge found it was
undisputed that A.T. had a disability and that the school
district was an entity required to make reasonable
accommodations unless the school district demonstrated that such
accommodations would impose an undue burden to its operation.
N.J.A.C. 13:13-4.11. Employing the standard from the Americans
with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213, the
judge found that to state a claim for failure to accommodate, a
plaintiff must show that he or she (1) has a disability; (2) is
otherwise qualified to participate in a program; and (3) was
denied the benefits of the program or discriminated against
because of the disability.
The judge noted that under the IDEA, centralization of
programs was lawful and determined that plaintiffs failed to
show that the centralization of the program deprived them of a
benefit. Based upon the circumstances present, the judge
reasoned that program accessibility, rather than facility
accessibility, was key to the implementation of the ADA, and by
implication the LAD.
10 A-2424-12T1 The judge found that plaintiffs established the first two
elements but did not show that the district deprived A.T. of a
cognizable benefit or program due to a disability. "To the
contrary, the [p]laintiffs received all the necessary
educational benefits, programs and extracurricular resources
required under the law." Although the judge recognized that
there was a pedagogical benefit to attending one's neighborhood
school, "all other things being equal," he emphasized that A.T.
thrived in his kindergarten class, educationally and socially,
and that there was no evidence that A.T. or any of the putative
class members suffered actual harm by not attending his or
neighborhood school or by being bused to school. Accordingly,
the judge dismissed the complaint. This appeal followed.
While this appeal was pending, the Third Circuit upheld the
district court's decision dismissing plaintiffs IDEA and RA
claims on April 26, 2013. J.T. v. Dumont Pub. Schs., 533 Fed.
App'x 44, 55 (3d Cir. 2013). The circuit court emphasized that
"IDEA permits schools to provide special education services in a
centralized location." Id. at 49. The circuit court concurred
that there was no substantive harm shown to A.T. or any of the
putative class members as there was "no denial of services,
opportunities, participation, or benefits." Id. at 50. The
circuit court also rejected plaintiffs' claim under the RA,
11 A-2424-12T1 reasoning that "when [RA] claims are based on violations of the
IDEA, the [RA] claims are derivative of the IDEA claims." Id.
at 52 (internal citations omitted).
In addition, the circuit court explicitly rejected
plaintiffs' claim that they suffered additional injury under the
RA because they were bused out of their neighborhood and located
in a different part of the school from the regular education
classrooms, thus marking them as disabled in the eyes of their
peers. Ibid. The court found that Doe v. National Board of
Medical Examiners, 199 F.3d. 146, 153 (3d Cir. 1999), which held
that under certain circumstances, merely identifying a person as
disabled can be a violation of the RA, did not support
plaintiffs' RA claims. J.T., supra, 533 Fed. App'x at 52. The
court found that busing students in compliance with their IEPs
was not such a circumstance, stating "[i]n contrast, IDEA
requires school districts to identify students in need in order
to provide them special education services. Busing students to
a centralized location for special services may be integral to
IDEA compliance and, depending on the IEP, is sought by many
parents of children with special needs." Ibid. (internal
citations omitted). The court also stressed that "the procedure
through which the school district placed A.T. in the inclusion
12 A-2424-12T1 class is not rendered a systemic issue simply because J.T.
raises it in a putative class action."4 Id. at 54.
III.
On appeal, plaintiffs argue that the trial judge erred in
holding that they failed to establish a prima facie case under
the LAD for disability discrimination. Plaintiffs contend that
attending one's neighborhood school is a cognizable benefit
protected under the LAD, and that the judge incorrectly
distinguished between program and facility accessibility in
analyzing the benefit. Further, plaintiffs contend that the
judge's determination that plaintiffs provided no proof of
actual harm was erroneous because plaintiffs' expert's report
described such harm.
Amici, consisting of several non-profit organizations that
advocate for the rights of children with disabilities, support
plaintiffs' arguments. They submit that studies show that
children with disabilities benefit more from being in regular
education classrooms with regular education students, rather
4 In considering J.T.'s failure to exhaust the IDEA administrative remedies, the court observed that while J.T. framed the complaint as an overall challenge to a general school policy, the determination of the effect of any district policy on each IEP entailed a factually-intensive inquiry, which the IDEA administrative process was designed to address, noting that"[t]his claim addresses only one component of the school district's educational program . . . ." Id. at 54.
13 A-2424-12T1 than being segregated in special education classes with only
disabled students. They also contend that children are
stigmatized as different by having to take a small school bus to
their programs. Amici further argue that the school district's
policy of centralizing the inclusion kindergarten class denied
the putative class members of benefits they would have enjoyed
if they had attended integrated classrooms in their neighborhood
schools.
Defendants maintain that no LAD violation occurred because
under the IDEA and state law, a school district has discretion
in determining the location and type of services that a child
needs to receive an appropriate education in accordance with the
child's IEP. They also argue that because plaintiffs' LAD
claims are based upon the same core facts as their IDEA claims,
the LAD claims are derivative of the IDEA claims and fail for
the same reasons as the IDEA and the RA claims. Defendants
further contend that plaintiffs failed to establish that A.T.
was deprived of a benefit or, in the alternative, submit that
the IEPs were a reasonable accommodation based upon each child's
individual disability. Finally, defendants urge us to affirm
the trial court's decision because the record does not contain
any proof of actual harm.
14 A-2424-12T1 We begin with a review of the applicable legal principles
that guide our analysis. We first address the federal law
concerning education of children with disabilities. "Although
education is primarily a concern of state and local
governments," education of children with disabilities "is
regulated by a complex scheme of federal and state statutes and
administrative regulations." Lascari v. Bd. of Educ., 116 N.J.
30, 33 (1989). The IDEA ensures that all children with
disabilities5 have available to them a free appropriate public
education (FAPE) in the least restrictive environment that
provides special education and related services to meet their
unique needs and prepare them for further education, employment,
and independent living, and ensures that the rights of such
children and their parents are protected. See 20 U.S.C.A. §§
1400(d)(1)(A),(B). New Jersey has adopted a statute, N.J.S.A.
18A:46-1 to -55, and regulations, N.J.A.C. 6A:14-1.1 to -9.2, to
comply with the extensive goals and procedures established in
the IDEA in order to receive significant federal funding. See
20 U.S.C.A. § 1412.
5 A "child with a disability" includes children with intellectual disabilities, speech and language impairments, serious emotional disturbance, and specific learning disabilities, who, by reason thereof, need special education and related services. 20 U.S.C.A. § 1401(30)(A).
15 A-2424-12T1 Central to the IDEA and the provision of a FAPE is the IEP,
a comprehensive written plan developed by a team consisting of
the student's parents, teachers, and representatives of the
local educational agency.6 20 U.S.C.A. § 1414(d). The IEP's
ultimate purpose is to tailor the educational services in order
to meet the special needs resulting from the student's
disability and to ensure that the student receives the benefits
of a FAPE. 20 U.S.C.A. §§ 1412(a)(1), (4). The IEP is
generally developed each year by the entire IEP team. 20
U.S.C.A. §§ 1414(d)(2), (4). Regarding the development of this
important comprehensive plan, the IDEA accords "significant
deference to the choices made by school officials as to what
constitutes an appropriate program for each student." Ridley
Sch. Dist. v. M.R., 680 F.3d 260, 277 (3d Cir. 2012).
The IDEA mandates that, to the maximum extent possible,
children with disabilities must be educated in the least
restrictive environment. 20 U.S.C.A. § 1412(a)(5); N.J.A.C.
6 Under the New Jersey Administrative Code, an IEP is defined as "a written plan which sets forth present levels of academic achievement and functional performance, measurable annual goals and short-term objectives or benchmarks . . . ." N.J.A.C. 6A:14-1.3. It refers to an "integrated, sequential program of individually designed instructional activities and related services necessary to achieve the stated goals and objectives. This plan shall establish the rationale for the student's educational placement[] [and] serve as the basis for program implementation. . . ." Ibid.
16 A-2424-12T1 6A:14-1.1(b)(5). This environment is one that, to the greatest
extent possible, educates disabled children together with
children who are not disabled in the same school the disabled
child would attend if the child was not disabled. 20 U.S.C.A. §
1412(a)(5); N.J.A.C. 6A:14-4.2. Specifically, "[u]nless the IEP
of a child with a disability requires some other arrangement,
the child is educated in the school that he or she would attend
if nondisabled." Murray v. Montrose Cnty. Sch. Dist., 51 F.3d.
921, 929 (10th Cir.), cert. denied, 516 U.S. 909, 116 S. Ct.
278, 133 L. Ed. 2d 198 (1995) (internal citations omitted); see
also N.J.A.C. 6A:14-14.2(a)(7). The Third Circuit has
interpreted this to require that a disabled child be placed in
the least restrictive environment that will provide the child
with a "meaningful educational benefit." T.R. v. Kingwood Twp.
Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000). Additionally,
in the Third Circuit, there is a presumption in favor of placing
the child in the neighborhood school if possible. See Oberti v.
Bd. of Educ., 995 F.2d 1204, 1224 n.31 (3d Cir. 1993).
Nevertheless, the IDEA does not impose an absolute
obligation to place a child in his or her neighborhood school;
rather, the school district is required to take into account
geographical proximity of placement. Barnett v. Fairfax Cnty.
Sch. Bd., 927 F.2d 146, 153 (4th Cir.), cert. denied, 502 U.S.
17 A-2424-12T1 589, 112 S. Ct. 175, 116 L. Ed. 2d 138 (1991); White v.
Ascension Parish Sch. Bd.,7 343 F.3d 373, 380 (5th Cir. 2003)
(school districts have discretion on the location of special
education services); see also AW v. Fairfax Cnty. Sch. Bd., 372
F.3d 674, 682 (4th Cir. 2004) (finding no mandate that the
student must be assigned to the closest school). School
districts are permitted to centralize services and the
preference for neighborhood schooling is one of many factors
which the school district is entitled to consider. See Barnett,
supra, 927 F.2d at 153. Further, the school district is not
required to move a program or service to a child's neighborhood
school. See Kevin G. v. Cranston Sch. Comm., 130 F.3d. 481, 482
(1st Cir. 1997) (holding that a school district was not required
to move a nurse to a student's neighborhood school to comply
with the IDEA), cert. denied, 524 U.S. 956, 118 S. Ct. 2377, 141
L. Ed. 2d 744 (1998); see also Urban v. Jefferson Cnty. Sch.
Dist., 89 F.3d 720, 728 (10th Cir. 1996); M.A. v. Voorhees Twp.
Bd. of Educ., 202 F. Supp. 2d 345, 363-64 (D.N.J. 2002) (holding
that a school district was not required to make dramatic changes
7 Indeed, all federal circuits that have considered the issue (First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth) recognize that there is no right to a neighborhood school assignment under the IDEA. White, supra, 343 F.3d at 381.
18 A-2424-12T1 to its program in order for a child to attend his neighborhood
school), aff'd, 65 Fed. App'x 404 (3d Cir. 2003).
If the parents disagree about the contents of the IEP, the
IDEA provides two methods of seeking redress. They can request
a due process hearing,8 which in New Jersey entails a full-
fledged adjudicatory hearing at the Office of Administrative
Law, or they can file an administrative complaint with the
designated state education agency, which must investigate and
issue a decision within sixty days. See 34 C.F.R. § 300.152. A
party aggrieved by the decision may bring an appeal from the
administrative proceedings in any state or federal district
court regardless of the amount in controversy. 20 U.S.C.A. §
1415(i)(2)(A). Generally, plaintiffs must exhaust these
administrative remedies before seeking relief under the IDEA as
well as under several other federal laws:
Nothing in this title [20 U.S.C.A. §§ 1400 et seq.] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973 [29 U.S.C.A. §§ 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that
8 At a due process hearing, the student may bring complaints under the IDEA "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child[.]" 20 U.S.C.A. § 1415(b)(6)(A).
19 A-2424-12T1 before the filing of a civil action under such laws seeking relief that is also available under this part [20 U.S.C.A. §§ 1411 et seq.], the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part.
[20 U.S.C.A. § 1415(l).]
Thus, to the extent that any federal action seeks relief
that is available under the IDEA, the administrative procedures
in the IDEA must first be exhausted. N.J. Prot. & Advocacy,
Inc. v. N.J. Dep't of Educ., 563 F. Supp. 2d 474, 484 (D.N.J.
2008). The exhaustion rule permits "agencies to exercise
discretion and apply their expertise, to allow the complete
development of the record before judicial review, to prevent
parties from circumventing the procedures established by
Congress, and to avoid unnecessary judicial decisions by giving
the agency an opportunity to correct errors." Urban, supra, 89
F.3d at 724 (citing Ass'n for Cmty. Living v. Romer, 992 F.2d
1040, 1044 (10th Cir. 1993)). Further, "[t]his provision bars
plaintiffs from circumventing IDEA's exhaustion requirement by
taking claims that could have been brought under IDEA and
repackaging them as claims under some other statute" such as the
RA and the ADA. Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d.
272, 281 (3rd Cir. 1996).
20 A-2424-12T1 In the prior federal litigation, plaintiffs contended,
albeit unsuccessfully, that defendants' policy of centralizing
the provision of special education services and failing to
provide special education services at each child's neighborhood
school violated the RA. The RA provides that anyone receiving
federal funds may not discriminate against an "otherwise
qualified individual with a disability . . . ." 29 U.S.C.A. §
794(a). The education regulations promulgated under Section 504
of the RA generally conform to the standards established in the
IDEA. See 34 C.F.R. §§ 104.31 to -39. Indeed, the IDEA and the
RA are "built around fundamental notions of equal access to
state programs and facilities" and thus "their substantive
requirements . . . have been interpreted to be strikingly
similar." Smith v. Robinson, 468 U.S. 992, 1017, 104 S. Ct.
3457, 3471, 82 L. Ed. 2d 746, 768 (1984), superseded on other
grounds by 20 U.S.C.A. 1415(i)(3)(B).
Comparable to the RA, the ADA protects against disability
discrimination by providing that "no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C.A. § 12132. The
ADA regulations generally conform to the regulations promulgated
21 A-2424-12T1 under Section 504 of the RA. See 28 C.F.R. § 35.103(a). "With
limited exceptions, the same legal principles govern ADA and RA
claims." CG v. Pa. Dep't of Educ., 734 F.3d 229, 235 (3d Cir.
2013).
Relying on these well-recognized similarities, federal
courts have routinely concluded that "if a disabled child is not
entitled to a neighborhood placement under the IDEA, he [or she]
is not entitled to such a placement under [the RA]." Urban,
supra, 89 F.3d at 728; see also Miller v. Bd. of Educ., 565 F.3d
1232, 1246 (10th Cir. 2009) (noting that "complying with the
IDEA is sufficient to disprove educational discrimination" under
the RA); N.L. v. Knox Cnty. Schs., 315 F.3d 688, 695-96 (6th
Cir. 2003) (noting that "precedent has firmly established that
section 504 claims are dismissed when IDEA claims brought on the
theory of a denial of free appropriate public education are also
dismissed."); Taylor v. Altoona Area Sch. Dist., 737 F. Supp. 2d
474, 487 (W.D. Pa. 2010) (noting that if an IDEA claim fails,
ADA and RA claims brought on the same core facts "must also
fail") (internal citations omitted); Barnett, supra, 927 F.2d at
154-55 (finding school board did not violate the IDEA or the RA
by not delivering program for hearing impaired student in
child's neighborhood school). Conversely, if the IDEA claim and
the RA or the ADA claims do not share a similar factual basis,
22 A-2424-12T1 they will be addressed separately. See CG, supra, 734 F.3d at
235; Taylor, supra, 737 F. Supp. 2d at 487-88; Hornstine v. Twp.
Of Moorestown, 263 F. Supp. 2d 887, 901 (D.N.J. 2003).
While the IDEA concerns the affirmative duty to provide a
public education to disabled students, the RA and the ADA
"embody the negative prohibition against depriving disabled
students of public education." CG, supra, 734 F.3d at 234
(citing W.B. v Matula, 67 F.3d 484, 492-93 (3d Cir. 1995)).
Hence, the IDEA provides a remedy for "inappropriate educational
placement decisions, regardless of discrimination," while the
ADA and the RA prohibit and provide a remedy for discrimination.
Ibid. (citing Hornstine, supra, 263 F. Supp. 2d at 901).
Generally, failure to provide a FAPE violates the IDEA as well
as the ADA and the RA9 "because it deprives disabled students of
a benefit that non-disabled students receive simply by attending
school in the normal course — a free, appropriate public
education." Id. at 235. Conversely, the provision of a FAPE
generally rules out discrimination claims under the RA and the
ADA for benefits available under the IDEA. See, e.g., Miller,
9 We recognize that as the definition of disability is different under the IDEA and the RA, violation of the IDEA is not evidence of a per se violation of the RA. Andrew M. v. Delaware Cnty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 349 (3d Cir. 2007).
23 A-2424-12T1 supra, 565 F.3d. at 1246; H.D. v. Cent. Bucks Sch. Dist., 902 F.
Supp. 2d 614, 628 (E.D. Pa. 2012).
IV.
We now turn to the LAD's protection from disability
discrimination, the basis of plaintiffs' complaint. In New
Jersey, persons with disabilities are protected from
discrimination by the LAD. N.J.S.A. 10:5-4. In relevant part,
the LAD provides:
All persons shall have the opportunity to obtain . . . all the accommodations, advantages, facilities, and privileges of any place of public accommodation . . . without discrimination because of . . . disability . . . . This opportunity is recognized as and declared to be a civil right.
[N.J.S.A. 10:5-4.]
"A place of public accommodation" includes "any kindergarten,
primary and secondary school[.]" N.J.S.A. 10:5-5(l).
Our courts broadly interpret the LAD to further its purpose
"to eradicate the 'cancer of discrimination[.]'" Ellison v.
Creative Learning Ctr., 383 N.J. Super. 581, 588 (App. Div.
2006) (internal citations omitted). The regulations implemented
in furtherance of the LAD similarly provide that "the remedial
provisions of the statute will be given a broad construction and
its exceptions construed narrowly." N.J.A.C. 13:13-1.2(a). The
LAD must be construed to prohibit any unlawful discrimination
24 A-2424-12T1 against any person because such a person is disabled. N.J.S.A.
10:5-4.
The LAD public accommodation regulations provide that
(a) It shall be unlawful for . . . any place of public accommodation to refuse, withhold from or deny an individual, either directly or indirectly, on account of that person's disability or perceived disability, access to any of the accommodations, advantages, facilities or privileges of a place of public accommodation . . . [and] to discriminate against a person with a disability in the price, eligibility criteria, methods of administration, standards, terms, or conditions upon which access to such accommodations, advantages, facilities or privileges may depend.
[N.J.A.C. 13:13-4.3(a).]
N.J.A.C. 13:13-4.4(a) requires a place of public
accommodation to "afford goods, services, facilities,
privileges, advantages, and accommodations . . . in the most
integrated setting" and "to the extent reasonable[.]" And
N.J.A.C. 13:13-4.11(a) requires a place of public accommodation
to accommodate a disabled person to the extent reasonable unless
providing the accommodation "would impose an undue burden" on
the place of public accommodation.
To determine the extent of the protection afforded to
disabled persons under the LAD, we must look to the analytical
framework of the RA and the ADA. Lasky v Moorestown Twp., 425
N.J. Super. 530, 538 (App. Div.), certif. denied, 212 N.J. 198
25 A-2424-12T1 (2012); See also Ensslin v. Twp. Of N. Bergen, 275 N.J. Super.
352, 364 (App. Div. 1994) (noting appropriateness of construing
a state regulation based on federal law due to the correlation
between state and federal law on disability discrimination),
certif. denied, 142 N.J. 446 (1995). Indeed, the Supreme Court
has recently observed that the Legislature has not "amended the
LAD to afford rights to the disabled that are different from
those found in Section 504 [of the RA] and the ADA . . . ."
Victor v. State, 203 N.J. 383, 406 (2010); see also Chisolm v.
McManimon, 275 F.3d 315, 324-25 n.9 (3d Cir. 2001) (analyzing an
ADA claim "with the understanding that the principles will apply
equally to the [RA] and the [LAD] claims").
Under the ADA and the RA standard for establishing a prima
facie case of failure to accommodate a disability, a plaintiff
must show that he or she (1) had a disability; (2) was otherwise
qualified to participate in the activity or program at issue;
and (3) was denied the benefits of the program or otherwise
discriminated against because of his or her disability.
Chambers v. Sch. Dist of Philadelphia Bd. of Educ., 587 F.3d
176, 189 (3d Cir. 2009); D.G. v. Somerset Hills Sch. Dist., 559
F. Supp. 2d 484, 503 (D.N.J. 2008); cf., Victor, supra, 203 N.J.
at 407. If the plaintiff can meet this burden, the question
then becomes whether the accommodation was reasonable. Lasky,
26 A-2424-12T1 supra, 425 N.J. Super. at 539, 542-44; Ellison, supra, 383 N.J.
Super. at 595-96. The defendant may argue as an affirmative
defense that the requested accommodation created an undue burden
on the defendant. Hall v. Saint Joseph's Hosp., 343 N.J. Super.
88, 108-09 (App. Div. 2001), certif. denied, 171 N.J. 336
(2002).
In this case, the trial court found that plaintiffs
established the first two elements of a LAD failure-to-
accommodate prima facie case, that A.T. was disabled and was
otherwise qualified for a program or activity, but that
plaintiffs did not establish the third element, that A.T. was
deprived "a cognizable benefit or program." Applying the
applicable RA and ADA legal principles, we agree.
When a disabled child is denied a FAPE, it violates the
IDEA and the RA "because it is denying a disabled child a
guaranteed education merely because of the child's disability.
It is the denial of an education that is guaranteed to all
children that forms the basis of the claim." Andrew M., supra,
490 F.3d at 350; C.G., supra, 734 F.3d at 235. The undisputed
facts in this case show that A.T. received a FAPE and there was
no evidence presented that any other class member did not or
will not receive a FAPE. Under the IDEA and state law, this is
precisely the special education benefit made available to A.T.
27 A-2424-12T1 Accordingly, guided by the previously cited cases
concerning the RA, the ADA, and the IDEA, we hold that, when a
LAD discrimination claim concerns the special education benefits
and related services available to a child under the IDEA, the
program or benefit used to determine the prima facie test for
disability discrimination is the provision of a FAPE. Relying
further on the similarity between the RA, the ADA, and the LAD,
we also hold that if a disabled child is not entitled to a
neighborhood school placement under the ADA or the RA, he or she
is not entitled to such placement under the LAD.
Plainly, the issue of the location of special education
services is a component of the IEP process aimed at developing a
FAPE. The same facts underlying A.T.'s IDEA claim and RA claim
are the core facts in his LAD claim. Federal courts have
routinely rejected claims that placement in a non-neighborhood
school for purposes of receiving special education and related
services is a form of disability discrimination under the RA or
the ADA. See White, supra, 343 F.3d at 381. In fact, the Third
Circuit rejected plaintiffs' claim of RA discrimination based on
non-neighborhood school placement in affirming the dismissal of
the federal litigation here. Plaintiffs have not cited and our
research has not revealed any cases that held that the failure
to provide a FAPE in the neighborhood school violated the RA or
28 A-2424-12T1 the ADA.
Plaintiffs incorrectly seek to isolate one specific
component of A.T.'s IEP, the inclusion class location, and
assert that it violates the right to attend one's neighborhood
school, purportedly a separate and distinct benefit from the
educational benefits provided under the IDEA. Separation of one
component of the FAPE from all the other services and
considerations that went into the IEP in this case is not
appropriate. We cannot agree that, for purposes of the three
elements of the prima facie test, there is a separate stand-
alone benefit of attending the neighborhood school unrelated to
the provision of a FAPE. This argument has not been successful
under the RA or the ADA and, based upon previously stated RA and
ADA principles, it must fail here. Simply put, where the
disabled child's placement is determined as part of the IDEA
process, the program or benefit the school district must provide
is the provision of a FAPE. Andrew M., supra, 490 F.3d at 350.
Plaintiffs argue further that centralization of special
education services, although admittedly correct under the IDEA
and federal and state special education regulations, denies a
child access to his neighborhood school in violation of state
and federal regulations requiring that all public facilities be
accessible to persons with disabilities. Based upon RA and ADA
29 A-2424-12T1 principles addressing special education benefits, this argument
is also unpersuasive. Moreover, the district has not denied
A.T. physical access to his neighborhood school; indeed, he
attended Selzer for the pre-school class and for first grade.
He did not attend Selzer for kindergarten because his IEP, aimed
at providing a FAPE, called for him to be in an inclusion class,
which was held at Grant. Thus, plaintiffs' reliance on
regulations concerning physical access is misplaced here.
Additionally, we reject plaintiffs' contention that the
provision of special transportation services to bus A.T. to his
special education program constitutes a separate violation of
the LAD. Transportation is a related service which cannot be
segregated from the child's individual IEP and FAPE. The IDEA
requires transportation to be provided as a related service when
it is necessary to enable a child with a disability to benefit
from education. 20 U.S.C.A. § 1401(26)(A). Thus,
transportation is not a separate educational component but is a
means to assist the child in receiving the FAPE as designed by
the IEP. If an individual student is aggrieved by the provision
or non-provision of transportation, he or she can file for due
process under the IDEA and request a change. See Tyler W. v.
Upper Perkiomen Sch. Dist., 963 F. Supp 2d 427, 436-37 (E.D. Pa.
2013) (FAPE provided despite lengthy bus ride to educational
30 A-2424-12T1 placement); Bonadonna v. Cooperman, 619 F. Supp. 401, 415
(D.N.J. 1985) (district required to provide transportation to
facility located distance from neighborhood school).
Contrary to plaintiffs' arguments, the cases upon which
they relied do not provide support for their claims. Oberti, an
IDEA case, highlighted the undisputed legal principle that,
under the IDEA, the preferred placement for special education
services is the least restrictive environment, but also
acknowledged, as do all the cases concerning least restrictive
environment, that the placement depends on the child's unique
needs as determined by a properly constructed IEP. Oberti,
supra, 995 F.2d at 1214-15. Importantly, Oberti underscores
that the IDEA governs the decision on where the child receives
special education services and if a child is aggrieved by the
placement, the remedy is to file a due process petition alleging
failure to comply with the IDEA. 20 U.S.C.A. 1415(b)(6). Here,
plaintiffs seek to make an end run around the IDEA by dismissing
the due process petition and repackaging the claim as a class
action under the LAD.
Likewise, Hornstine is inapposite here. In Hornstine, the
district court engaged in an extensive discussion about the
overlapping of the IDEA, the RA, and the ADA and determined that
the issue before it, a high school's qualification requirements
31 A-2424-12T1 for valedictorian, was not part of the child's IEP and was not
covered by the IDEA; hence, the plaintiff did not have to
exhaust administrative remedies. Hornstine, supra, 263 F. Supp.
2d at 901-02, 913. In stark contrast, the inclusion class here
is part of the IEP and part of the benefit made available to
A.T. under the IDEA. Thus, Hornstine supports defendants'
assertions that when the dispute is based upon benefits provided
pursuant to the IDEA, the LAD claim is coextensive with the IDEA
and the RA claims. Additionally, plaintiffs' reliance on D.G.
is misdirected because there the school district did not provide
any special education program or benefits, which supported the
plaintiff's RA and LAD claims for failure to provide an
educational benefit. D.G., supra, 559 F. Supp. 2d at 488-90.
No evidence in the record demonstrates that A.T. did not
receive the appropriate educational program from the inclusion
placement at Grant or that any of plaintiffs' rights under the
IDEA were violated. Instead, it was acknowledged that placement
in the inclusion class benefitted A.T., both educationally and
socially. Nor were any facts provided that any other children
did not receive a FAPE or were actually harmed. Rather,
plaintiffs' expert made a sweeping claim that all children
provided with special education services in a non-neighborhood
school or provided with the related service of transportation,
32 A-2424-12T1 are harmed by the stigma of being singled out as disabled. The
expert never evaluated A.T. or any of the other putative class
members nor did she identify the specific harm suffered by these
children. Since A.T. received the educational benefit to which
he was entitled under the IDEA, the Third Circuit found no
evidence of harm under the IDEA or the RA, and we perceive no
actual harm here under the LAD.
In sum, we conclude that for purposes of establishing a
prima facie case of disability discrimination under the LAD
where the facts concern the provision of special education and
related services, the program or benefit measured under the
third element is the provision of a FAPE. To be sure, when the
discrimination claimed does not pertain to special education and
related services, the particular benefit or program will be
different. Because here, the alleged discriminatory component,
the location of the services, was part of the comprehensive IEP
developed to provide A.T. with a FAPE, and did so provide,
plaintiffs have not demonstrated a prima facie claim for
disability discrimination under the LAD.
Affirmed.
33 A-2424-12T1