H.D. v. WEST ORANGE BOARD OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHAMBERS OF MARTIN LUTHER KING

ESTHER SALAS COURTHOUSE

UNITED STATES DISTRICT JUDGE 50 WALNUT ST.

ROOM 5076

NEWARK, NJ 07101

973-297-4887

January 10, 2022

LETTER OPINION

Re: H.D. & N.R., on behalf of themselves and their minor child, N.D., v. West

Orange Board of Education

Civil Action No. 19-18943 (ES) (CLW)

Dear parties:

Before the Court is Defendant West Orange Board of Education’s (the “District”) motion

for summary judgment. (D.E. No. 63). Having considered the parties’ submissions, the Court

decides this matter without oral argument. See Fed R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the

following reasons, the Courts GRANTS the District’s motion.

I. BACKGROUND1

Plaintiffs H.D. and N.R. are the parents of minor child N.D. N.D. is a student enrolled in

West Orange Public Schools, and he is eligible for special education and related services under the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Over the span of

several years, and on behalf of N.D., Plaintiffs filed four due process petitions in the New Jersey

Office of Administrative Law (“NJ OAL”). For each petition, Plaintiffs were represented by

counsel.

The four petitions claimed, among other things, that the District proposed an individualized

education program (“IEP”) that would not provide N.D. with a free and appropriate public

education (“FAPE”), as required under the IDEA. The first petition challenged the proposed IEP

for the 2016-17 school year; the second petition for the 2017-18 school year; the third petition for

the 2018-19 school year; and the fourth petition for the 2019-20 school year. The challenged IEPs

were identical in that they would place N.D. in a language and learning disabilities (“LLD”)

classroom for all major academic subjects. The first two petitions were consolidated; the third

and fourth were not.

1 The Court gathers the facts primarily from the District’s statement of facts (D.E. No. 63-9 at 5–11 (“Def.’s

SOF”)); Plaintiffs’ answer (D.E. No. 64 at 9–11 (“Pls.’ Answer”)); Plaintiffs’ statement of facts (D.E. No. 64 at 12–

20 (“Pls.’ SOF”)); and the District’s response (D.E. No. 65 at 5–18 (“Def.’s Resp.”)). The Court also relies on the

continuously paginated record submitted by the District. (D.E. Nos. 64-3–64-7 (“R.”)).

Neither party submitted their statements of fact and responses as separate documents, in violation of Local

Civil Rule 56.1(a). Instead, they appended their statements and responses to their briefs. When citing to the portion

of those documents consisting of the substantive briefing, the Court will refer to the District’s moving brief as “Mov.

Br.”, Plaintiffs’ opposition brief as “Opp. Br.”, and the District’s reply as “Reply.”

While the first three petitions were pending, but before the fourth petition was actually

filed, N.D. remained in the educational placement he was in before Plaintiffs filed the first petition.

(Def.’s SOF ¶ 5; Pls.’ Answer ¶ 5). The parties dispute the parameters of that placement. The

District maintains that the placement “was a self-contained English Language Arts class, a pull-

out resource replacement Mathematics class, and general education for his other classes.” (Def.’s

SOF ¶ 3). N.D.’s parents generally admit to that placement but add that “N.D. was attending a

Primary-Autistic classroom (multi-grade classroom) for English Language arts” from around 2014

to September 2019 even though he was never “diagnosed as autistic” and even though they were

unaware of that placement. (Pls.’ Answer ¶ 3). However, because nothing turns on this dispute,

the Court will hereinafter refer to that placement as the “general education placement” or the “stay

put placement.”

N.D. remained in the general education placement pursuant to 20 U.S.C. § 1415(j), which

imposes what is known as the “stay put” rule. See Drinker by Drinker v. Colonial Sch. Dist., 78

F.3d 859, 863–64 (3d Cir. 1996). The stay put rule, which the Supreme Court has described as

“unequivocal,” requires the school district to keep a child in the child’s then-current educational

placement “during the pendency of any proceedings initiated under the [IDEA], unless the state or

local educational agency and the parents or guardian of a disabled child otherwise agree.” Honig

v. Doe, 484 U.S. 305, 323 (1988). The stay put rule “functions, in essence, as an automatic

preliminary injunction.” Drinker, 78 F.3d at 864.

On June 28, 2019, the Administrative Law Judge (“ALJ”) decided the consolidated

petitions—the first two petitions—holding that the proposed IEPs for the 2016-17 and 2017-18

school years, which proposed placing N.D. in an LLD classroom, “would provide N.D. with a free

and appropriate education.” (Def.’s SOF ¶¶ 12–13; Pls.’ Answer ¶¶ 12–13). From the date of

the ALJ’s decision, Plaintiffs had 90 days—until September 26, 2019—to challenge the ALJ’s

decision in a civil action in federal or state court. See § 1415(i)(2)(B). As discussed more below,

Plaintiffs never did so. However, their third petition challenging the IEP for the 2018-19 school

year was still pending.

On August 27, 2018, the District proposed an IEP for the 2019-20 school year, which

would also place N.D. in the LLD classroom. (Def.’s SOF ¶ 16; Pls.’ Answer ¶ 16). On

September 4, 2019, the District implemented the IEP for the 2019-20 school year, removing N.D.

from his general education placement and placing N.D. in the LLD classroom. (Def.’s SOF ¶ 17;

Pls.’ Answer ¶ 17). This change occurred before Plaintiffs’ right to challenge the ALJ’s decision

denying their consolidated petitions expired, and before the ALJ decided their third petition. On

September 9, 2019, Plaintiffs filed their fourth petition, challenging the proposed IEP for the 2019-

20 school year. (Def.’s SOF ¶ 18; Pls.’ Answer ¶ 18).

On September 20, 2019, Plaintiffs filed an emergent motion in the NJ OAL, seeking an

order declaring that the District violated the IDEA by unilaterally changing N.D.’s stay put

placement while the third petition was pending and compelling the District to return N.D. to the

general education placement, which he was in before the ALJ decided the two consolidated

petitions. (Def.’s SOF ¶ 18; Pls.’ Answer ¶ 18; see also R. 188). They also sought an order

compelling the District immediately to convene an IEP meeting. (R. 188). They argued that the

District’s change—moving N.D. from his general education placement to the LLD classroom—

violated the IDEA because their third petition was still pending. (Id. at 189). Plaintiffs also

argued they were entitled to emergent relief because N.D. would suffer irreparable harm in the

absence of such relief, N.D.’s legal rights were well-settled, they were likely to succeed on the

merits challenging the unilateral placement, and the equities tipped in their favor. (R. at 191–92).

On October 1, 2019, the ALJ denied their emergent motion. (Def.’s SOF ¶ 24; Pls.’

Answer ¶ 24; see also R. 462–66). The ALJ reasoned that, while “[t]he right to stay-put is well

settled,” the present situation was “not the typical stay put” because she had “rendered a final

decision stating that the LLD placement in all academic subjects was appropriate” for the 2016-17

and 2017-18 school years. (R. 465). After finding the stay put rule’s automatic injunction did

not apply, the ALJ next concluded that Plaintiffs were not entitled to emergent relief under

N.J.A.C. 6A:3-1.6(b), which requires the movant to show irreparable harm, a settled legal right, a

likelihood of success on the merits, and the balancing of the equities and interests tipping in the

movant’s favor. (Id.). The ALJ found that N.D. would not suffer irreparable harm because she

had previously concluded that “the LLD placement for all academic subjects” would provide N.D.

a FAPE under the IEPs for the 2016-17 and 2017-18 school years. (Id.). The ALJ declined to

address the likelihood of success in challenging the IEP for the 2018-19 school year because the

proceedings concerning the third petition had not concluded. (Id.). Finally, the ALJ repeated

that the right to stay put in this context was not settled, and that Plaintiffs did not show that the

equities and interests tipped in their favor. (Id.).

On October 11, 2019, still represented by counsel, Plaintiffs filed the instant civil action in

federal court on behalf of themselves and N.D. (D.E. No. 1, Complaint (“Compl.”)). Their

Complaint sought injunctive relief returning N.D. to his general education placement, a remand to

the ALJ for proceedings consistent with the requested injunctive relief, an award of attorneys’ fees

and costs, and an award of such other relief that the Court deems equitable and just. (Id. at 11).

On December 19, 2019, the ALJ denied Plaintiffs’ third petition, holding that the proposed

IEP for the 2018-19 school year would provide N.D. with a FAPE. (Def.’s SOF ¶¶ 30–31; Pls.’

Answer ¶¶ 30–31). From that date, Plaintiffs had 90 days—until March 18, 2020—to challenge

the ALJ’s decision in a civil action in federal or state court. See § 1415(i)(2)(B). As discussed

more below, Plaintiffs never did so. However, their fourth petition challenging the IEP for the

2019-20 school year is still pending.

On April 7, 2020, Plaintiffs’ counsel moved to withdraw as counsel for Plaintiffs. (D.E.

No. 13). On April 9, 2020, the Honorable Cathy L. Waldor, United States Magistrate Judge,

granted the motion. (D.E. No. 17). Since then, Plaintiffs have proceeded pro se.2

2 Plaintiffs may proceed pro se to vindicate their own rights under the IDEA because “parents undoubtedly

have substantive rights under the IDEA that they may enforce by prosecuting claims brought under that statute on

their own behalf.” Chambers ex rel. Chambers v. Sch. Dist. Of Philadelphia Bd Of Educ., 587 F.3d 176, 183 (3d Cir.

2009) (citing Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 531 (2007)). In Winkelman, the

Supreme Court left open the question “whether [the] IDEA entitles parents to litigate their child’s claims pro se.”

550 U.S. at 535 (emphasis added). However, the Third Circuit has “answered that question in the negative.” See

Chambers, 587 F.3d at 183 n.9 (citing Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225 (3d Cir. 1998), abrogated on

other grounds by Winkelman, 550 U.S. 516). Thus, to the extent Plaintiffs continue to pursue their stay put claim on

behalf of N.D., they do not have standing to do so, but they may pursue claims on their own behalf. See R.B. v.

The District moves for summary judgment. (D.E. No. 63).

II. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A genuine issue of material fact exists when—in viewing the evidence and all reasonable

inferences drawn from it in the light most favorable to the nonmovant—a reasonable jury could

return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The movant bears the burden of establishing that no “genuine issue” of facts exists.

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996).

III. DISCUSSION

The Court begins by emphasizing additional context concerning the scope of this dispute,

then shifts to addressing Plaintiffs’ separate theories of relief.

Scope of this Dispute: As noted above, since the filing of the instant civil action, Plaintiffs

have not filed another civil action challenging the ALJ’s decision denying their first, second, and

third petitions—and their right to do so has expired. Nor have they attempted to amend their

Complaint to pursue such a challenge.

Plaintiffs claim otherwise, arguing that they have challenged the ALJ’s decisions

concerning the three petitions in this civil action. (Pls.’ Answer ¶¶ 15 & 52). However, they

provide no evidence supporting that claim. And their Complaint—filed by counsel—is

captioned, “INTERLOCUTORY APPEAL”; asserts one count of “Violation of Stay Put”; and

is accompanied with the ALJ’s decision denying emergent relief, but not with the ALJ’s decision

denying their consolidated petitions. (Compl. at 1, 8 & Ex. A). Further, Plaintiffs filed their

Complaint on October 11, 2019, after the time to challenge the ALJ’s decision denying their

consolidated petitions expired. See § 1415(i)(2)(B). Because Plaintiffs cannot amend their

Complaint in opposition to summary judgment, the Court focuses its inquiry on whether the

District violated the stay put rule. See, e.g., Jones v. Treece, 774 F. App’x 65, 67 (3d Cir. 2019)

(“Jones is correct that a pro se litigant’s pleadings are liberally construed. But liberal pleading

does not require that, at the summary judgment stage, defendants must infer all possible claims

that could arise out of facts set forth in the complaint.” (cleaned up)).

Moreover, because Plaintiffs never challenged the ALJ’s decisions, those decisions are

“final” pursuant to the IDEA. See § 1415(i)(1)(B); see also D.E. v. Cent. Dauphin Sch. Dist., 765

F.3d 260, 275 (3d Cir. 2014) (“In situations where neither party appeals, that administrative

decision becomes ‘final and binding under the IDEA’ and, as a result, nothing is left to be

Mastery Charter Sch., 532 F. App’x 136, 137 n.1 (3d Cir. 2013) (“Ms. Ballard is not permitted to represent R.B.

because parents may not represent their children in IDEA cases in federal court.”); Woodruff v. Hamilton Twp. Pub.

Sch., 305 F. App’x 833, 836 n.2 (3d Cir. 2009) (“Because the Woodruffs are not attorneys, they may not represent

B.W. on appeal. Therefore, they are proceeding on appeal only as to their claims.” (internal citation omitted)).

exhausted administratively.” (quoting Porter v. Bd. of Trustees of Manhattan Beach Unified Sch.

Dist., 307 F.3d 1064, 1069 (9th Cir. 2002))).

Plaintiffs’ Theories of Relief: Plaintiffs appear to pursue two theories under which the

District allegedly violated the stay put rule. The first theory is that the stay put rule requires the

District to keep N.D. in his original placement while at least one of their several petitions are

pending even if their other petitions were denied by the ALJ and reached finality. (Pls.’ SOF ¶¶

40, 42 & 47). If that theory is correct, then N.D. should be in the general education placement—

because, as of this writing, Plaintiffs’ fourth petition remains pending. The second theory is that

the District violated the stay put rule by changing N.D.’s placement too early—before their right

to challenge the ALJ’s decision denying their consolidated petitions expired. (Pls.’ SOF ¶ 50; see

also Opp. Br. at 21). For substantially similar reasons, the Court rejects the first theory on the

merits and the second theory as moot.

Multiple-Pending-Petitions Theory: The Court disagrees with Plaintiffs’ multiple-

pending-petitions theory—that the stay put rule requires the District to keep N.D. in his original

placement while at least one of their several petitions are pending even if their other petitions were

denied by the ALJ and reached finality. The District’s obligation to keep N.D. in the general

education placement—the stay put placement—lasted “until a new placement [wa]s established by

either an actual agreement between the parents and the District, or by an administrative decision

upholding the District’s proposed placement which [Plaintiffs] choose not to appeal, or by a

court.” Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 484 (2d Cir. 2002)

(quoting Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y.

2000), aff’d, 297 F.3d 195 (2d Cir. 2002)) (emphasis added); see also Gabel ex rel. L.G. v. Bd. of

Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 324 (S.D.N.Y. 2005) (same); cf. Drinker,

78 F.3d at 866 (“assum[ing] without deciding that the district court properly concluded that the

underlying placement dispute was resolved when the Drinkers did not appeal Dr. Redfern’s

decision”). Indeed, Congress codified the stay put rule “to strip schools of the unilateral authority

they had traditionally employed to exclude disabled students . . . from school,” Honig, 484 U.S. at

323 (emphasis in original), understanding “that a child with a disability is best served by

maintaining her educational status quo until the disagreement over her IEP is resolved,” Rena C.

v. Colonial Sch. Dist., 890 F.3d 404, 416 (3d Cir. 2018) (quoting M.R. v. Ridley School Dist., 744

F.3d 112, 118 (3d Cir. 2014)) (emphasis added). Those goals are consistent with permitting a

school district to change the placement of a child after an ALJ’s decision deeming that placement

appropriate reaches finality. Therefore, Plaintiffs’ failure to appeal the ALJ’s decision on their

consolidated petitions established a new placement for N.D., and the District was entitled to

transfer N.D. into that placement. And the District did just that: the IEP for the 2019-20 school

year—which placed N.D. in the LLD classroom for all major academic subjects—was identical to

the IEPs approved by the ALJ and unchallenged by Plaintiffs in a civil action.

Too Early Theory: As noted, Plaintiffs’ “too early” theory is that the District unlawfully

changed N.D.’s placement before their right to challenge the ALJ’s decision denying their

consolidated petitions expired. But that theory of relief is moot. Importantly, Plaintiffs have

sought only injunctive relief—an order returning N.D. to the general education placement. Cf.

Moynihan v. West Chester Area Sch. Dist., 813 F. App’x 825, 827 (3d Cir. 2020) (request for

injunctive relief mooted by child’s graduation); J.T. ex rel. J.T. v. Newark Bd. of Educ., 564 F.

App’x 677, 680 (3d Cir. 2014) (same). And the stay put rule provides pendente lite relief, which

means its relief lasts only during litigation. See People Against Police Violence v. City of

Pittsburgh, 520 F.3d 226, 232 (3d Cir. 2008) (explaining “that ‘stay put’ orders . . . merely serve

to maintain the status quo pendente lite” (citing, inter alia, J.O. v. Orange Twp. Bd. of Educ., 287

F.3d 267, 272–73 (3d Cir. 2002))). Thus, Plaintiffs’ requested relief could only last while the

dispute challenging the first petition remained pending. And because that dispute is no longer

pending—as discussed above, see § 1415(i)(1)(B); D.E., 765 F.3d at 275—the Court cannot order

N.D.’s return to the general education placement on the basis that the District transferred N.D. too

early. Indeed, “[i]f developments occur during the course of adjudication that eliminate a

plaintiff’s personal stake in the outcome of a suit or prevent a court from being able to grant the

requested relief, the case must be dismissed as moot.” Cty. of Morris v. Nationalist Movement,

273 F.3d 527, 533 (3d Cir. 2001) (quoting Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698–

99 (3d Cir. 1996)).3

IV. CONCLUSION

For the above stated reasons, the Court GRANTS the District’s motion for summary

judgment. (D.E. No. 63). An appropriate Order will be entered.

/s/Esther Salas

Dated: January 10, 2022 Esther Salas, U.S.D.J.

3 Plaintiffs’ theory that the District moved N.D. too early would not be moot if they sought compensatory relief

for the alleged stay put violation. See Moynihan, 813 F. App’x at 827. However, despite being represented by

counsel when they filed this civil action, they did not seek such relief in their Complaint. See J.T., 564 F. App’x at

681; Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 597 (7th Cir. 2006). It was not until the last page of

their brief in opposition to summary judgment that they requested “[a]n award of tutoring, [p]rivate therap[y], third

party evaluations, and related costs . . . to Plaintiffs.” (Opp. Br. at 24). Notably, that quoted portion of their

opposition brief is all they dedicate to the issue. Because Plaintiffs cannot amend their Complaint in opposition to

summary judgment, the Court does not consider their vague claim for compensatory relief. See, e.g., Jones, 774 F.

App’x at 67.