J.A. v. MONROE TOWNSHIP BOARD OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

J.A., individually and on No. 1:20-cv-09498-NLH-MJS

behalf of her minor child No. 1:21-cv-06283-NLH-MJS

J.A., (Consolidated)

Plaintiffs,

V. OPINION

MONROE TOWNSHIP BOARD

OF EDUCATION; NEW JERSEY

DEPARTMENT OF EDUCATION;

KEVIN DEHMER, Interim

Commissioner of Education;

and NEW JERSEY OFFICE OF

ADMINISTRATIVE LAW

Defendants.

ROBERT CRAIG THURSTON

THURSTON LAW OFFICES LLC

433 RIVER ROAD

STE 1315

HIGHLAND PARK, N.J. 08904

Counsel for Plaintiffs

LAURIE LEE FICHERA

KERRY SORANNO

SADIA AHSAUDDIN

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

25 MARKET STREET - P.O. BOX 112

TRENTON, N.J. 08625

Counsel for the State Defendants

WILLIAM S. DONIO

YOLANDA NICOLE MELVILLE

COOPER LEVENSON, P.A.

1125 ATLANTIC AVENUE, THIRD FLOOR

ATLANTIC CITY, N.J. 08401

Counsel for Monroe Township Board of Education

HILLMAN, District Judge

Pending before the Court are the partial motions for

summary judgment of Plaintiffs Joanna A.1 (“Joanna”) and J.A.

(together “Plaintiffs”) against Defendant Monroe Township Board

of Education (“MTBOE”), (ECF 145),2 and against Defendants New

Jersey Department of Education(“NJDOE”), Interim Commissioner of

Education Kevin Dehmer, and the New Jersey Office of

Administrative Law (“OAL”) (together “State Defendants”), (ECF

196); MTBOE’s cross-motion for partial summary judgment, (ECF

153); and MTBOE’s motions to seal, (ECF 130; ECF 177). For the

reasons expressed below, each of the pending motions will be

denied.

I. Background

The facts of these cases and underlying administrative

proceedings are extensive. The Court presumes the parties’

familiarity with them and has considered them in full in

drafting this opinion. They will be recited briefly here and

referenced as applicable further below.

J.A. is a child with autism, making her eligible for

1 The Court borrows the use of “Joanna A.” from the complaint

filed under Docket No. 1:21-cv-06283 for clarity.

2 This case involves matters filed under Docket Nos. 1:21-cv-

06283 and 1:20-cv-09498. The Court’s citations to the record

will be to filings under Docket No. 1:20-cv-09498 unless

otherwise noted.

special education and related services under the Individuals

with Disabilities Education Act (“IDEA”). (ECF 145-1 at ¶ 4;

ECF 152-1 at ¶ 4). Joanna A. is J.A.’s parent. (ECF 145-1).

MTBOE operates public schools in the Township of Monroe,

New Jersey, where Plaintiffs have been domiciled during all

times relevant to the pending actions. (ECF 145-1 at ¶¶ 1-2;

ECF 152-1 at ¶¶ 1-2). NJDOE is a State Educational Agency as

defined by the IDEA, (ECF 196-1 at ¶ 1; ECF 209-1 ¶ 1), for

which Dehmer served as Acting Commissioner. OAL is an

executive-branch agency that hears special-education matters.

(ECF 196-1 at ¶¶ 3-4; ECF 209-1 ¶¶ 3-4).

Plaintiffs allege in their statement of facts that J.A. was

diagnosed with autism, feeding disorder, and developmental delay

by Dr. Mariko Nakanishi of Children’s Hospital of Philadelphia

in May 2011 and that MTBOE’s Office of Special Services/Child

Study accepted the diagnoses and evaluative data on which they

were premised, but not Dr. Nakanishi’s recommendations. (ECF

145-1 at ¶¶ 64-65; ECF 145-4 at 1-2). Plaintiffs thereafter

obtained additional independent evaluations in areas including

occupational therapy and auditory processing, but while MTBOE

accepted diagnoses, including J.A.’s “severe auditory processing

disorder,” (“ADP”) it did not accept related recommendations or

all findings and evaluative data relied upon. (ECF 145-4 at 7-

28; ECF 145-6 at 60-63). Plaintiffs assert that MTBOE did not

perform an audiology test or central auditory processing

evaluation for J.A. and the professionals who comprised J.A.’s

Individualized Education Program (“IEP”) Team did not specialize

in audiology, ADP, autism, and other relevant disciplines. (ECF

145-1 at ¶¶ 87-88, 91, 103, 120, 131, 147-48). Plaintiffs

eventually made a demand, on February 17, 2020, for MTBOE to

conduct an Independent Educational Evaluation (“IEE”) of J.A.

designed to test ADP. (ECF 145-7 at 1-2).

Three years earlier, on May 24, 2017, Plaintiffs filed a

pro se request with NJDOE’s Office of Special Education Programs

(“OSEP”) for a mediation, purportedly due to MTBOE’s alleged

failures to provide data and compensatory services. (ECF 196-1

at ¶ 5; ECF 196-4 at 26-28). Following unsuccessful mediation,

the matter was transmitted to OAL, where a settlement conference

– as opposed to peremptory hearing – was unsuccessfully held on

July 6, 2017, the matter was transferred to Administrative Law

Judge (“ALJ”) Jeffrey R. Wilson, and motion practice, briefing

schedules, and allegedly unwarranted adjournments pushed the

matter into June 2018. (ECF 145-1 at ¶¶ 9-17; ECF 196-1 at ¶¶

8-9, 17-18, 21, 27-35, 38; ECF 196-4 36-43; ECF 196-5 at 1-39,

41-43). After Plaintiffs filed a federal suit naming ALJ Wilson

as a defendant, ALJ Wilson recused himself and the matter was

assigned to ALJ John Kennedy who scheduled hearings for October

2018. (ECF 196-6 at 14-17).

Meanwhile, Plaintiffs filed a second due process complaint,

for which mediation was unsuccessful, and ALJ Kennedy ultimately

consolidated the two pending matters, following the October

hearing schedule for the original matter. (ECF 145-1 at ¶¶ 26,

28-30; ECF 196-1 at ¶¶ 50, 53-54, 59-60; ECF 196-6 at 26-30, 41-

43). Plaintiffs allege that they provided MTBOE with evidence

five business days in advance of a scheduled October 1, 2018

hearing date in compliance with federal and state law while

MTBOE’s submission was untimely, resulting in Plaintiffs’ motion

to exclude, which ALJ Kennedy denied, and an interlocutory

appeal, which the undersigned dismissed. (ECF 145-1 at ¶¶ 40-

46; ECF 145-3 at 5-37; ECF 196-1 at ¶¶ 63-72). Following

remand, ALJ Catherine Tuohy conducted hearings from September to

December 2020 with ALJ Kennedy’s evidentiary ruling in place,

culminating in a February 22, 2021 decision dismissing

Plaintiffs’ petitions, which Plaintiffs appealed – resulting in

the filing of an action before this Court under Docket No. 1:21-

cv-06283. (ECF 145-1 at ¶¶ 32-36; ECF 196-1 at ¶¶ 85-90, 95;

ECF 196-8 at 1-7, 16-107).

Separately, and following Plaintiffs’ February 2020 demand

for an IEE, MTBOE filed a due process complaint, a hearing for

which was scheduled for June 18, 2020 before ALJ MaryAnn Bogan

prior to which Plaintiffs allegedly requested school records and

were denied, served a subpoena on MTBOE’s counsel, and

themselves complied with the five-day evidentiary requirements

while MTBE did not – resulting in Plaintiffs filing a motion to

exclude. (ECF 145-1 at ¶¶ 50-54; ECF 145-3 at 40-58; ECF 196-1

at ¶¶ 99-100, 106, 110-16; ECF 196-9 at 1-5, 10-14). The matter

was reassigned to ALJ Joseph Ascione who set schedules for the

motion to exclude and a motion to quash the subpoena. (ECF 196-

1 at ¶¶ 120, 122, 124). ALJ Ascione did not formally rule on

Plaintiffs’ motion to exclude but ultimately permitted MTBOE to

present evidence and reportedly made additional evidentiary

rulings, such as limits on documentary evidence and cross-

examination, objected to by Plaintiffs. (ECF 145-1 at ¶ 58; ECF

145-2 at 1-16; ECF 196-1 at ¶¶ 126-31). ALJ Ascione issued an

opinion granting MTBOE’s denial of the IEE on July 16, 2020,

(ECF 145-2 at 1-16), which Plaintiffs appealed to this District

under Docket No. 1:20-cv-09498, (ECF 145-1 at ¶ 35).

On March 21, 2022, this Court consolidated these two cases.

(1:18-cv-09580, ECF 94 at 8, 10; ECF 95). Magistrate Judge

Matthew J. Skahill then amended the case caption and directed

that future filings be made with the consolidated caption under

Docket No. 1:20-cv-09498. (1:20-cv-09498, ECF 110; 1:21-cv-

06283, ECF 69).

In a pair of March 30, 2022 decisions, the Court held that

individual ALJs were entitled to judicial immunity and dismissed

claims against them with prejudice. (1:20-cv-09498, ECF 87 at

26-27; ECF 88; 1:21-cv-06283, ECF 50 at 25-26; ECF 51).

The pending motions followed.

II. Discussion

A. Jurisdiction

The Court exercises original jurisdiction over Plaintiffs’

claims brought under federal law pursuant to 28 U.S.C. § 1331.

It exercises supplemental jurisdiction over Plaintiffs’ state-

law claims. See 28 U.S.C. § 1367(a). The Court has

jurisdiction to review the administrative decisions below

pursuant to the provisions of the IDEA. See 20 U.S.C. §

1415(i)(2); K. E. v. N. Highlands Reg’l Bd. of Educ., 840 F.

App’x 705, 709 n.2 (3d Cir. 2020).

B. Motions for Summary Judgment

The Federal Rules of Civil Procedure dictate that a “court

shall grant summary judgment if the movant shows that 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 dispute is genuine when “the ‘evidence is such that a

reasonable jury could return a verdict for the nonmoving party’”

and a fact is “‘material’ if it ‘might affect the outcome of the

suit under the governing law.’” Razak v. Uber Techs., Inc., 951

F.3d 137, 144 (3d Cir. 2020) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Facts and evidence are to be

viewed in the light most favorable to the nonmovant. Id.

Though these familiar principles apply here, see Moorestown

Twp. Bd. of Educ. v. S.D., 811 F. Supp. 2d 1057, 1064-65 (D.N.J.

Sept. 15, 2011), district courts apply what is referred to as

“‘modified de novo’ review” when presented with appeals of

administrative decision under the IDEA, see D.S. v. Bayonne Bd.

of Educ., 602 F.3d 553, 564 (3d Cir. 2010) (quoting P.P. v. W.

Chester Area Sch. Dist., 585 F.3d 727, 734 (3d Cir. 2009)).

Under this standard, “[f]actual findings from the administrative

proceedings are to be considered prima facie correct” and courts

are obligated to explain any departure from those findings. Id.

(quoting P.P., 585 F.3d at 734). An ALJ’s legal determinations,

however, are reviewed de novo. S.D., 811 F. Supp. 2d at 1064.

A court’s decision is to be based on the evidence as developed

at the administrative proceedings unless additional evidence is

presented. See M.G. v. N. Hunterdon-Voorhees Reg’l High Sch.

Dist. Bd. of Educ., 778 F. App’x 107, 110 (3d Cir. 2019) (citing

20 U.S.C. § 1415(i)(2)(C)).

III. Analysis

A. IDEA Procedural Safeguards

Before discussing the substance of the pending motions, the

Court finds it useful to briefly review the procedural

safeguards implicated by Plaintiffs’ allegations. Once a due

process complaint is filed, the parties have a thirty-day

“resolution period” to settle the matter to the parents’

satisfaction. See 20 U.S.C. § 1415(f)(1)(B); 34 C.F.R. §

300.510(b); M.D. v. Vineland City Bd. of Educ., No. 1:19-cv-

12154, 2022 WL 844423, at *3 (D.N.J. Mar. 22, 2022). If the

parties do not arrive at a resolution within thirty days, “the

due process hearing may occur, and all of the applicable

timelines for a due process hearing . . . shall commence,” 20

U.S.C. § 1415(f)(1)(B)(ii); see also 34 C.F.R. § 300.510(b)(1),

and the case is transmitted to the OAL, N.J.A.C. 6A:14–

2.7(h)(4). A final decision must be reached and mailed to the

parties within forty-five days of the expiration of the thirty-

day period. 34 C.F.R. § 300.515(a); see also N.J.A.C. 6A:14–

2.7(j) (“A final decision shall be rendered by the

administrative law judge not later than 45 calendar days after

the conclusion of the resolution period . . . .”); C.P. v. N.J.

Dep’t of Educ., No. 19-12807, 2022 WL 3998700, at *3 (D.N.J.

Sept. 1, 2022) (“[I]f no specific adjournments are requested by

the parties, a final decision must be rendered within 45 days

after the end of the 30-day resolution period.”). Both state

and federal regulations contemplate adherence to the forty-five-

day timeline absent a request for adjournment or extension by

the parties. See 34 C.F.R. § 300.515(c); N.J.A.C. 6A:14–2.7(j).

OSEP is to contact the Clerk of the OAL for a peremptory

hearing date that “shall, to the greatest extent possible, be

convenient to all parties but shall be approximately 10 days

from the date of the scheduling call.” N.J.A.C. 1:6A–

9.1(a); M.D., 2022 WL 844423, at *5. At least five days prior

to the hearing, parties must disclose to one another “all

evaluations completed by that date, and recommendations based on

the offering party’s evaluations, that the party intends to use

at the hearing.” 20 U.S.C. § 1415(f)(2)(A); 34 C.F.R. §

300.512(b)(1). Failure to do so may result in such evaluations

and recommendations being barred from the hearing. 20

U.S.C. § 1415(f)(2)(B); 34 C.F.R. § 300.512(b)(2); see also 34

C.F.R. § 300.512(a)(3) (counting among a party’s rights the

ability to “[p]rohibit the introduction of any evidence at the

hearing that has not been disclosed to that party at least five

business days before the hearing”). New Jersey regulations read

more broadly, dictating that unless a judge concludes

that evidence could not have reasonably been disclosed within

the allotted time that “[u]pon application of a party, the judge

shall exclude any evidence at hearing that has not been

disclosed to that party at least five business days before the

hearing.” N.J.A.C. 1:6A–10.1(c); see also P.F. o/b/o G.F. v.

Ocean Twp. Bd. of Educ., No. 21-19315, 2022 WL 4354791, at *11

(D.N.J. Sept. 20, 2022) (“[T]he five-day rule states that

evidence to be used at a hearing must be disclosed to the

opposing party five days prior to the hearing.” (emphasis

added)).

“The IDEA contemplates that it is the State Educational

Agency that is responsible for ensuring fair and impartial

procedures in place to handle any due process

petition.” M.D., 2022 WL 844423, at *2 (citing 20 U.S.C.

§ 1415(e)(1), (f)(1)(A)).

B. Plaintiffs’ Motion for Partial Summary Judgment Against

State Defendants (ECF 196)

The Court begins with Plaintiffs’ motion for partial

summary judgment as to State Defendants. Plaintiffs seek entry

of summary judgment as to Counts 1, 2, 3, and 4 of the complaint

filed under Docket No. 1:20-cv-09498 and Counts 3, 4, 5, 6, and

12 of the complaint filed under Docket No. 1:21-cv-06283. (ECF

196; ECF 196-2 at 2). The relevant counts from the 2020

complaint allege violation of the ten-day peremptory hearing

date set forth in New Jersey Administrative Code through OAL’s

institution and NJDOE’s allowance of settlement hearings on

Thursdays, failure to enforce the five-day rule as required by

the IDEA and federal and state regulations, violation of the New

Jersey Administrative Code’s adjournment rule through the use of

Thursday settlements and corresponding reassignments of cases

that do not settle, and failure to immediately transmit a matter

to OAL upon MTBOE’s filing of a due process complaint without a

request to mediate. (Id.; ECF 1 at ¶¶ 187-202, 204-20, 222-40,

242-56).

The relevant counts from the 2021 complaint similarly

allege violation of the ten-day peremptory hearing date, five-

day rule, and adjournment rule as well as violation of the

statutory thirty-day resolution period by, among other actions,

permitting additional negotiations during Thursday settlements

and violation of the forty-five-day rule caused by systemic

flaws in New Jersey’s resolution procedures. (ECF 196; ECF 196-

2 at 2; 1:21-cv-06283, ECF 1 at ¶¶ 410-23, 425-44, 446-59, 461-

72, 566-81).

Prior to challenging the merits of Plaintiffs’ motion,

State Defendants argue that summary judgment is premature as

discovery has not yet been conducted and, pursuant to Federal

Rule of Civil Procedure 56(d), they are unable to present facts

essential to their opposition. (ECF 209 at 10-11). An

accompanying declaration submitted by State Defendants’ counsel

attests that the parties have been engaged in settlement

discussions facilitated by Judge Skahill prior to and following

Plaintiffs’ motion and the parties have awaited discovery

orders, including the consolidation of discovery and possible

use of discovery from a related class-action. (ECF 209-3 at ¶¶

22-25, 36). Counsel states that State Defendants would like the

opportunity to depose or serve interrogatories on Plaintiffs,

school district employees, and counsel regarding possible

requested adjournments or extensions, off-the-record

conversations with ALJs, evidentiary exchanges, and damages.

(Id. at ¶¶ 28-35; ECF 209 at 11-13).

Plaintiffs respond that State Defendants mistakenly rely on

legal standards general to motions for summary judgment,

ignoring the modified standard of review applicable for

administrative appeals and the fact that the counts for which

summary judgment is sought pertain to the procedural processes

of the cases – for which the administrative record has been

provided. (ECF 210 at 4-5).

The Court is not so convinced. As set forth below, whether

the Court applies Rule 56 or 20 U.S.C. § 1415(i)(2)(C)(ii) here,

the result is the same.

First, the Court does not find that the standards of Rule

56 are completely inapplicable merely because the matters in

controversy are administrative appeals. See S.D., 811 F. Supp.

2d at 1064-65 (“Because this matter is pending before the Court

on motions for summary judgment, the well-settled principles of

summary judgment also apply.” (citing Bd. of Educ. of Montgomery

Cnty. v. Hunter, 84 F. Supp. 2d 702, 705 n.2 (D. Md. Feb. 16,

2000)); see also M.G., 778 F. App’x at 110 (concluding that,

though the district court cited the standard applicable to

ordinary summary judgment motions, it appropriately made clear

that it was applying modified de novo review); Jonathan H. v.

The Souderton Area Sch. Dist., 562 F.3d 527, 529 (3d Cir. 2009)

(finding, in the context of compulsory counterclaims, that

claims filed pursuant to 20 U.S.C. § 1415(i)(2) are properly

characterized as original civil actions rather than appeals and

are thus governed by the Federal Rules of Civil Procedure

(citing Kirkpatrick v. Lenoir Cnty. Bd. of Educ., 216 F.3d 380,

387-88 (4th Cir. 2000))); but see I. K. by and through

Christopher K. v. Manheim Twp. Sch. Dist., No. 22-1347, 2023 WL

3477830, at *1 n.4 (3d Cir. May 15, 2023) (agreeing in dicta in

a non-precedential opinion that, in the context of whether a

denial of a motion for judgment on the administrative record was

a final order for the purposes of jurisdiction, the provisions

of the IDEA, not Rule 56, apply and district courts may grant or

deny relief regardless of the presence of genuine issues of

material fact); K.A. ex rel. F.A. v. Fulton Cnty. School Dist.,

741 F.3d 1195, 1209 (11th Cir. 2013) (“[T]he usual [Rule 56]

summary judgment principles do not apply in an IDEA case.”

(quoting Loren F. ex rel. Fisher v. Atlanta Indep. Sch., 349

F.3d 1309, 1313 (11th Cir. 2003))).

“[I]t is well established that a court ‘is obliged to give

a party opposing summary judgment an adequate opportunity to

obtain discovery.’ This is necessary because, by its very

nature, the summary judgment process presupposes the existence

of an adequate record.” Doe v. Abington Friends Sch., 480 F.3d

252, 257 (3d Cir. 2007) (quoting Dowling v. City of Phila., 855

F.2d 136, 139 (3d Cir. 1988)). The Federal Rules of Civil

Procedure authorize courts to defer or deny a motion, allow time

to obtain discovery, or enter other orders when a nonmovant

demonstrates that they are unable to present facts essential to

their opposition. Fed. R. Civ. P. 56(d); In re Avandia Mktg.,

Sales and Prods. Liab. Litig., 945 F.3d 749, 761 (3d Cir. 2019).

“If discovery is incomplete, a district court is rarely

justified in granting summary judgment, unless the discovery

request pertains to facts that are not material to the moving

party’s entitlement to judgment as a matter of law.” In re

Avandia Mktg., Sales and Prods. Liab. Litig., 945 F.3d at 761

(quoting Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir. 2015)).

Second, and most relevantly, the IDEA provides that in

civil actions following due process hearings courts “shall hear

additional evidence at the request of a party.” 20 U.S.C. §

1415(i)(2)(C)(ii). What additional evidence may be admitted is

left to the discretion of the district court. See D.K. v.

Abington Sch. Dist., 696 F.3d 233, 253 (3d Cir. 2012); see also

M.A. v. Jersey City Bd. of Educ., No. 14-6667, 2016 WL 7477760,

at *7 (D.N.J. Dec. 29, 2016) (“The right to supplement the

record is not absolute; rather, the decision to admit additional

evidence is committed to the discretion of the trial court.”

(citing Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir.

1995))). Courts within the Third Circuit may determine whether

to exclude additional evidence based upon similar considerations

as those applicable to a traditional civil hearing. See Z.H. v.

Cinnaminson Twp Bd. of Educ., No. 1:22-cv-01700, 2023 WL

4348551, at *5 (D.N.J. July 5, 2023) (citing Susan N., 70 F.3d

at 759). “[W]hile a district court may appropriately exclude

some evidence, ‘a court must exercise particularized discretion

in its rulings so that it will consider evidence relevant, non-

cumulative and useful in determining whether Congress’ goal has

been reached for the child involved.’” L.G. ex rel. E.G. v.

Fair Lawn Bd. of Educ., 486 F. App’x 967, 975 (3d Cir. 2012)

(quoting Susan N., 70 F.3d at 760).

In a recent decision within this vicinage, Rule 56(d) and

20 U.S.C. § 1415(i)(2)(C) were both used to justify denial of

summary judgment in an appeal of an ALJ’s approval of a

settlement. See G.W. v. Ringwood Bd. of Educ., No. 19-13734,

2022 WL 17850251, at *6-7 (D.N.J. Dec. 21, 2022). The parents

in G.W. filed a due process petition and settlement discussions

ensued for which one parent was not present and allegedly

opposed and the plaintiffs later filed an action appealing the

ALJ’s ultimate approval of the settlement alleging that it was

not entered into by the parents knowingly or voluntarily. Id.

at *1-3. Citing Federal Rule of Civil Procedure 56(d), 20

U.S.C. § 1415(i)(2)(C)(ii), and a certification from the

plaintiffs’ counsel stating that discovery in the form of

depositions and potential contemporaneous notes was needed, the

court held that summary judgment for the defendants was

premature because the plaintiffs had not yet had the opportunity

to obtain adequate discovery. Id. at *6.

The Court is persuaded that a similar result is appropriate

here and Plaintiffs’ motion will be denied without prejudice.

To be sure, these are unique cases challenging not only the

ALJs’ ultimate decisions, but most specifically the processes by

which they arrived at them. Supplementation of the record is

particularly warranted given the fact that Plaintiffs seek to

hold State Defendants accountable for MTBOE’s alleged failures

to negotiate in good faith during resolution periods, (ECF 196-2

at 20-23), and Plaintiffs’ citation to a certification of

counsel in support of its statement of facts. (ECF 196-1; ECF

196-3). This certification then, in turn, cites to the record,

but several relevant statements such as whether adjournments

were requested, actions allegedly taken by MTBOE during a

mediation, and interactions with ALJs are not supported by

citations to the record. (ECF 196-3 at ¶¶ 15, 23, 31, 34, 49,

51, 61, 72, 76, 78-79).

The Court is at the same time sensitive to the protracted

history of these cases and the administrative processes that

preceded them. State Defendants’ supplemental facts concede

that some administrative hearings are not completed within

forty-five days as contemplated by federal and state law. (ECF

209-2 at ¶¶ 4, 6). The present cases appear, on the surface, to

be among those for which the intentions of the IDEA procedural

scheme have not been met. Whether there are lawful explanations

for these delays and, if not, which entities may be held liable

remain to be seen.

A child’s years in school, and protection by the IDEA, are

finite. The Court is conscience of both the depletion of those

protections and loss of valuable learning and social experiences

as litigation draws on. State Defendants will therefore be

instructed to file within fourteen days of the entry of this

opinion and accompanying order a proposed schedule detailing the

discovery and related timeframe necessary to support an

opposition to a renewed motion for summary judgment. The Court

will thereafter enter a corresponding order and Plaintiffs may

renew their motion following completion.

C. Plaintiffs’ Motion for Partial Summary Judgment Against

MTBOE and MTBOE’s Cross-Motion for Partial Summary Judgment

(ECF 145; ECF 153)

The Court will next consider Plaintiffs’ motion for partial

summary judgment, (ECF 145), and MTBOE’s cross motion, (ECF

153), in tandem as their contentions overlap. Plaintiffs seek

summary judgment as to Counts 2, 10, and 16 of the complaint

filed under Docket No. 1:20-cv-09498 and Counts 1 and 4 of the

complaint filed under Docket No. 1:21-cv-06283. (ECF 145).

Counts 2, 10, and 16 of the 2020 complaint allege violations of

the five-day rule, use of an erroneous standard of proof in an

IEE denial case, and legal error in denying an IEE. (ECF 1 at

¶¶ 204-220, 367-85, 474-93). Counts 1 and 4 of the 2021

complaint allege denial of a Free Appropriate Public Education

(“FAPE”) by means including violation of Child Find obligations

and violation of the five-day rule. (1:21-cv-06283, ECF 1 at ¶¶

386-93, 425-44).

MTBOE, in turn, seeks summary judgment as to Counts 1 and 4

of the 2021 complaint as well as Count 2, which alleges legal

errors allegedly committed in the underlying due process case,

including failure to implement and enforce various procedural

safeguards, of which MTBOE allegedly advantaged and abetted.

(Id. at ¶¶ 395-408; No. 1:20-cv-09498, ECF 153).3

Plaintiffs’ motion brief separates this collection of

claims in two: denial of a FAPE and violation of the five-day

rule. The Court will analyze these claims similarly.

1. Violation of the Five-Day Rule: Count 2 of 2020 Complaint

and Count 4 of 2021 Complaint

3 MTBOE’s supporting brief references its December 9, 2022 motion

for summary judgment. (ECF 152). The Court denied that motion,

(ECF 129), and MTBOE’s January 11, 2023 motion for partial

summary judgment, (ECF 171), without prejudice in a recent

opinion and order for failure to comply with Local Civil Rules,

(ECF 213).

Count 2 of the 2020 complaint and Count 4 of the 2021

complaint allege violations of the five-day rule. Specific to

MTBOE, the 2020 complaint alleges that MTBOE did not exchange

evidence as required by June 11, 2020, wrongfully relied on the

common practice of Thursday settlements, and disregarded

Plaintiffs’ efforts to obtain documents that would have been

potentially included in the five-day exchange. (1:20-cv-09498,

ECF 1 at ¶¶ 209, 212-13). The 2021 complaint similarly alleges

that MTBOE did not comply with the five-day rule and disregarded

Plaintiffs’ attempts to obtain documents that may have been part

of the five-day exchange. (1:21-cv-06283, ECF 1 at ¶¶ 431,

433).

In their supporting brief, Plaintiffs allege that as to the

2021 complaint, the hearing date was scheduled for October 1,

2018, Plaintiffs complied with the five-day rule while MTBOE did

not, and after Plaintiffs moved to exclude MTBOE’s evidence ALJ

Kennedy nonetheless permitted some previously provided discovery

contrary to OAL precedent. (ECF 145-8 at 15). For the 2020

matter, the hearing date was scheduled for June 18, 2020, MTBOE

refused to provide requested documents or otherwise comply with

the five-day rule, and while Plaintiffs’ motion to exclude was

not expressly ruled on, MTBOE was nonetheless permitted to

present its case. (Id. at 15-16). The ALJs committed

reversible error and the two underlying administrative decisions

ought to be reversed, according to Plaintiffs, because MTBOE

should have been precluded from presenting evidence and would

have therefore been incapable of meeting its burdens of

proof. (Id. at 13, 16).

MTBOE responds, citing K. K.-M. v. Gloucester City Board of

Education, No. 19-15808, 2020 WL 5015485 (D.N.J. Aug. 25, 2020),

that Plaintiffs are without standing to seek redress from MTBOE

because case-management and evidentiary decisions are within

the discretion of ALJs. (ECF 152 at 5-8). On the merits, MTBOE

contends that, for the 2020 complaint, it was “inconceivable”

for Plaintiffs to rely on June 18, 2020 as the date of the due

process hearing when a prehearing conference was held just two

days earlier and that ALJ Ascione appropriately set a hearing

date for July 9, 2020 and required submissions by July 2,

2020. (Id. at 12-15). There is no evidence cited in the record

that ALJ Ascione found that MTBOE violated the five-day rule,

according to MTBOE. (Id. at 16). Similarly, MTBOE argues that,

for the 2021 matter, the five-day rule only applies to due

process hearings as opposed to other hearings and conferences

held by an ALJ, October 1, 2018 could not have been the due

process hearing date because the parties had not had a

scheduling call or prehearing conference, and that Plaintiffs’

relied-upon administrative decision is inapposite. (Id. at 19-

24).

At first blush, MTBOE’s standing argument possesses some

appeal. In K. K.-M., the court concluded that the plaintiff

lacked standing to seek redress from the school district for

alleged violation of the forty-five-day rule because for an

injury to be “fairly traceable” to a defendant, it could not

result from “the independent action of some third party not

before the court.” 2020 WL 5015485, at *5 (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Because the

violation of the forty-five-day rule was caused by the

ALJ’s sua sponte adjournments, the court reasoned that it was

not traceable to the school district’s conduct for standing

purposes. Id.

Here, Plaintiffs specifically attribute at least some of

their harm to the respective ALJs permitting MTBOE to present

evidence allegedly not provided in compliance with the five-day

rule. (ECF 145-8 at 13, 16). Because it has concluded above

that summary judgment against State Defendants is premature, the

Court will deny Plaintiffs’ motion without prejudice here.

Count 2 of the 2020 complaint and Count 4 of the 2021 complaint

allege systemic violations of the five-day rule by all

Defendants. (1:20-cv-09498, ECF 1 at ¶¶ 203-20; 1:21-cv-06283,

ECF 1 at ¶¶ 424-44). The Court concludes that it is unable to

fashion complete relief for a potential violation by one or more

Defendants, including MTBOE, until a motion against State

Defendants is renewed. See Mykolaitis v. Home Depot U.S.A.,

Inc., No. 13–1868, 2014 WL 12631449, at *1 (D.N.J. Nov. 25,

2014) (acknowledging a court’s inherent power to control its

docket and denying the defendants’ motion for summary judgment

pending its decision on a related motion to excluded expert

testimony (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)

and Rolo v. Gen. Dev. Corp., 949 F.2d 695, 702 (3d Cir. 1991))).

The Court further finds K. K.-M. to be distinguishable in

important respects and does not hold that Plaintiffs are without

standing to pursue their five-day claims against MTBOE and will

not grant MTBOE’s cross-motion. Significantly, K.K.-M centered

on an ALJ’s sua sponte actions. 2020 WL 5015485, at

*5. Plaintiffs allege here that MTBOE affirmatively did not

engage in exchanges of evidence as required by federal and state

law. To the extent that MTBOE appears to contend, for instance,

that October 1, 2018 could not have been the peremptory hearing

date because the parties had not yet held a scheduling call or

pre-hearing conference, (ECF 152 at 20), this Court has

previously interpreted that the “scheduling call” referenced

in N.J.A.C. 1:6A–9.1 for the purposes of scheduling peremptory

hearings merely refers to the transmittal of the case to the

OAL, see M.D., 2022 WL 844423, at *5 (“Plaintiffs allege that

they did not receive a hearing anywhere close to ten days after

the transmittal of their case to the OAL — instead they received

a settlement conference. That is more than enough to state a

plausible claim [of systemic violations of the ten-day

peremptory hearing date and adjournment rule] at this

juncture.”).

The Court cannot find clean hands in the compliance with

procedures that are contrary to law. As this Court has

previously stated, ”while ‘it is important that a school

district comply with the IDEA’s procedural requirements, rather

than being a goal in itself, such compliance primarily is

significant because of the requirements’ impact on students’ and

parents’ substantive rights.’” C.P., 2022 WL 3998700, at *9

(quoting D.S., 602 F.3d at 565). The Court is unwilling to

conclude here that Plaintiffs are without standing to assert

their five-day claims against MTBOE or that MTBOE complied with

federal and state law directing disclosure. Accordingly, the

Court will deny Plaintiffs’ motion for summary judgment as

to Count 2 of the 2020 complaint and Count 4 of the 2021

complaint and MTBOE’s cross-motion as to Counts 2 and 4 of the

2021 complaint.4

4 MTBOE’s brief includes arguments as to Count 2 of the 2021

complaint with its argument for Count 1 and alleged denial of a

FAPE, seeking affirmance of ALJ Tuohy’s decision. (ECF 152 at

31). The Court notes, however, that at least some of the

allegations of Count 2 are procedural in nature, including

violation of the five-day rule. (1:21-cv-06283, ECF 1 at ¶

2. Denial of FAPE – Counts 10 and 16 of the 2020 Complaint and

Count 1 of the 2021 Complaint5

Plaintiffs’ supporting brief contends that MTBOE failed to

evaluate and address J.A.’s APD and that a school district’s

failure to test a child with a suspected disability is a

procedural violation amounting to denial of a FAPE. (ECF 145-8

at 16-19). MTBOE knew or suspected that J.A. had sensory and

audiological issues dating back to 2009, according to

Plaintiffs, and even acknowledged her ADP and its effects on her

academic performance but did not test for it or provide adequate

services. (Id. at 20-21). MTBOE was unable to meets its burden

in denying an IEE because it never performed an evaluation and

its failure to evaluate also amounted to a substantive denial of

a FAPE, Plaintiffs claim. (Id. at 22-24).

MTBOE counters that federal and state regulations require

that student evaluations be sufficiently comprehensive and that

the district conducted numerous multidisciplinary assessments

and evaluations of J.A while Plaintiffs’ merely and incorrectly

argue that J.A. ought to have been evaluated in a specific

manner. (ECF 152 at 27-28). The district appropriately

395).

5 Plaintiffs’ brief refers to Count 2 of the 2021 complaint, (ECF

145-8 at 16); however elsewhere in their brief and in the motion

itself, Plaintiffs only seek summary judgment as to Counts 1 and

4, (id. at 1; ECF 145).

determined that an IEE was unnecessary based the

comprehensiveness of conducted evaluations, according to MTBOE,

(id. at 29-30), and ALJ Tuohy properly assessed the evidence and

credibility of witnesses, a departure from which would be

unjustified, (id. at 31-38).

School districts are obligated to evaluate children for

disability before the initial provision of special education

services and have an IEP in place at the beginning of each

school year. See 20 U.S.C. § 1414(a)(1)(A), (d)(2)(A); A.H. by

and through K. P. v. Colonial Sch. Dist., 779 F. App’x 90, 94

(3d Cir. 2019). Evaluations must “use a variety of assessment

tools and strategies to gather relevant functional,

developmental, and academic information, including information

provided by the parent,” not use any single measure or

assessment as a sole criterion, utilize technically sound

instruments, and ensure that children are “assessed in all areas

of suspected disability.” 20 U.S.C. § 1414(b)(2), (3)(B).

Among the procedural safeguards provided by the IDEA is the

opportunity for parents to obtain an IEE of their child. 20

U.S.C. § 1415(b)(1). An IEE may be conducted at public expense

“if the parent disagrees with an evaluation obtained by the

public agency.” 34 C.F.R. § 300.502(b)(1); N.J.A.C. 6A:14–

2.5(c) (“Upon completion of an initial evaluation or

reevaluation, a parent may request an independent evaluation if

there is disagreement with the initial evaluation or a

reevaluation provided by a district board of education. A

parent shall be entitled to only one independent evaluation at

the district board of education’s expense each time the district

board of education conducts an initial evaluation or

reevaluation with which the parent disagrees.”); see also M.S.

v. Hillsborough Twp. Pub. Sch. Dist., 793 F. App’x 91, 93 (3d

Cir. 2019) (“[A] parent must disagree with an evaluation before

there is a right to obtain public funding for an IEE. Neither

our prior decision, nor, more importantly, the text of the

statute, can be read to permit reimbursement without ever

disagreeing with the prior evaluation.”).

If a parent requests an IEE at public expense, the agency

has two options: ensure that an IEE is provided at public

expense or file a due process complaint “to request a hearing to

show that its evaluation is appropriate.” 34 C.F.R. §

300.502(b)(2); N.J.A.C. 6A:14–2.5(c)(1) (“Such independent

evaluation(s) shall be provided at no cost to the parent, unless

the district board of education initiates a due process hearing

to show that its evaluation is appropriate and, following the

hearing, a final determination to that effect is made.”); Wall

Twp. Bd. of Educ. v. C.M., 534 F. Supp. 2d 487, 491 (D.N.J. Jan.

30, 2008) (discussing 34 C.F.R. § 300.502 and N.J.A.C. § 6A:14–

2.5).

If the school district is successful in demonstrating that

its own evaluation was appropriate, an IEE at public expense is

not warranted. A.H., 779 F. App’x at 94 (citing 34 C.F.R. §

300.502(b)(3) and Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d

583, 590-91 (3d Cir. 2000)). Whether a district’s evaluation

is appropriate is a question of fact. See id. (citing D.S., 602

F.3d at 564).

Plaintiffs’ brief also addresses districts’ Child Find

obligations. Pursuant to Child Find, states must have in place

policies and procedures that ensure that children “who are in

need of special education and related services, are identified,

located, and evaluated.” 34 C.F.R. § 300.111(a)(1)(i); see

also 20 U.S.C. § 1412(a)(3); Anello v. Indian River Sch.

Dist., 355 F. App’x 594, 596 (3d Cir. 2009) (“School districts

have a ‘child find’ obligation to ensure all children with

disabilities are ‘identified, located, and evaluated’ for

eligibility for special education and related services.”

(quoting 20 U.S.C. § 1412(a)(3)(A))). New Jersey’s regulations

require district boards of education to develop written

procedures to refer students ages three through twenty-one “who

may have a disability due to physical, sensory, emotional,

communication, cognitive, or social difficulties.” N.J.A.C.

6A:14–3.3(a); see also Northfield City Bd. of Educ. v. K.S. on

behalf of L.S., No. 19-9582, 2020 WL 2899258, at *8 (D.N.J. June

3, 2020) (noting that, because state procedures do not set a

deadline for satisfaction of Child Find obligations, the Third

Circuit’s standard of “reasonable time after school officials

are on notice of behavior that is likely to indicate a

disability” is applied (quoting W.B. v. Matula, 67 F.3d 484, 501

(3d Cir. 1995))).

Child Find obligations extend to children who are “in need

of special education, even though they are advancing from grade

to grade.” 34 C.F.R. § 300.111(c)(1). A school district’s

failure to comply with its “continuing obligation” under Child

Find may amount to a procedural violation of the

IDEA. D.K., 696 F.3d at 249 (quoting P.P., 585 F.3d at 738).

Plaintiffs’ motion regarding MTBOE’s decision not to

provide an IEE is premised on an alleged failure by MTBOE to

evaluate J.A. (ECF 145-8 at 21-22). Their accompanying

statement of facts appears to clarify that MTBOE conducted

assessments and evaluations of J.A., including a speech-language

evaluation that indicated auditory processing challenges, though

not an audiology test or central auditory processing

evaluation. (ECF 145-1 at ¶¶ 79-88; ECF 145-4 at 50-57; see

also ECF 152-1 at ¶¶ 79-88 (admitting references to assessments

and evaluations as stated but denying any noncompliance with the

IDEA)). Hearing testimony provided by Dr. John Bersh,

Supervisor of Special Services for Monroe Township Public

Schools, stated that assessments conducted of J.A. were

comprehensive and his office determined that the IEE requested

would not have provided the school district with any information

not previously provided in prior evaluations. (ECF 154 at

171:19-23, 203:10-12). ALJ Ascione made findings of fact that

J.A. had undergone numerous evaluations since being found

eligible for special services in 2011, including five conducted

by MTBOE in 2018 and 2020, and that the proposed evaluation

addressed nervous-system issues which J.A. did not exhibit.

(ECF 145-2 at 7, 9). The Court is unable to vacate these

findings for the purpose of granting Plaintiffs’ motion on the

record before it.6

ALJ Ascione further concluded that 34 C.F.R. §

300.502(b)(1) was inapplicable to the matter because the

regulation pertains to parents’ disagreement with an agency’s

evaluation and an auditory evaluation was conducted by

Plaintiffs and not MTBOE. (ECF 145-2 at 12). A specific

6 The Court acknowledges Plaintiffs’ argument that ALJ Ascione

committed legal error in focusing on the appropriateness of the

proposed IEE as opposed to the appropriateness of MTBOE’s

evaluations. (ECF 170 at 22; see also ECF 1 at ¶¶ 377-78). The

Court agrees that the operative question is whether the school

district’s evaluation is appropriate, see 34 C.F.R. §

300.502(b)(2); N.J.A.C. 6A:14–2.5(c)(1), and that ALJ Ascione’s

decision largely assesses the necessity of the requested IEE,

(ECF 145-2 at 12-13). This apparent issue seems to be caused,

at least in part and as discussed immediately below, by the

factual finding that Plaintiffs’ demand was not prompted by an

expressed disagreement with an MTBOE evaluation to be analyzed.

finding of fact was made that “neither parents nor counsel’s

request for the evaluation provided any explanation for the

requested evaluation.” (Id. at 8). Separate from the

appropriateness of any assessment or evaluation conducted by the

district, this finding is relevant as a plaintiff’s entitlement

to an IEE at public expense is premised on disagreement with a

district evaluation. See 34 C.F.R. § 300.502(b)(1); N.J.A.C.

6A:14–2.5(c).

Plaintiffs’ February 17, 2020 demand letter indicated that

several re-evaluations had been performed with J.A. in January

2020 but that an audiological processing evaluation had not,

evidencing MTBOE’s alleged failure to assess J.A. in all areas

of suspected disability. (ECF 145-7 at 1). Their moving brief

attributes the demand to J.A. not progressing as desired and

MTBOE’s alleged refusal to provide supporting data for her

grade-to-grade advancement. (ECF 145-8 at 21-22). Absent

support in the record that Plaintiffs disagreed with evaluations

provided by MTBOE, the Court is constrained to find against them

as “only a disputed public evaluation can trigger a right for a

publicly funded IEE.” See M.S., 793 F. App’x at 93; but

see Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 274-

75 (3d Cir. 2007) (noting the Third Circuit’s broad application

of 34 C.F.R. § 300.502(b)(1) “to permit reimbursement not only

when the parents expressly disagree with the evaluation but also

when ‘the parents[ ] fail[ ] to express disagreement with the

District’s evaluations prior to obtaining their own’ evaluation

because unless the regulation is so applied ‘the regulation

[would be] pointless because the object of parents’ obtaining

their own evaluation is to determine whether grounds exist to

challenge the District’s.’” (alterations in original) (quoting

Warren G. ex rel. Tom G. v. Cumberland Cnty. Sch. Dist., 190

F.3d 80, 87 (3d Cir. 1999))).

The Court will also decline to enter summary judgment in

favor of Plaintiffs with respect to MTBOE’s alleged violation of

its Child Find obligations. Though Plaintiffs claim violation

of Child Find obligations for both complaints, (ECF 145-8 at

20), Child Find is only referenced in a specific allegation

in Count 1 of the 2021 complaint. (1:21-cv-06283, ECF 1 at ¶

386). It does not appear that an alleged violation of Child

Find was considered by ALJ Tuohy in her underlying February 22,

2021 decision as such violations were not included in

Plaintiffs’ due process petitions, but rather were raised during

post-hearing briefing and ALJ Tuohy concluded that the “claim

[wa]s beyond the scope of th[e] hearing.” (ECF 145-2 at

99). Therefore, the Court does not find that it may turn to the

administrative record provided for support of Plaintiffs’ claim.

Plaintiffs premise their Child Find allegation on MTBOE’s

failure to implement evaluations’ recommendations or otherwise

test J.A. for ADP. (ECF 145-8 at 20-21). The portions of their

statement of facts cited primarily focus on J.A.’s IEPs, MTBOE’s

allegedly insufficient reporting and failure to provide raw

data, and the use of acronyms in progress reports rather than

numeric percentages. To the extent that Plaintiffs allege that

MTBOE’s Child Find obligations were violated by its failure to

adopt the recommendations of private evaluators or perform

additional assessments specific to the ADP for which evaluations

had been provided, the Court declines to adopt a de facto rule

to that effect. See Miller v. Charlotte-Mecklenburg Schs. Bd.

of Educ., No. 3:20-cv-00493, 2021 WL 3561226, at *6-7 (W.D.N.C.

Aug. 11, 2021) (concluding that failure by an IEP team to follow

the recommendations of private evaluators was not violative of

the IDEA); Dougall v. Copley-Fairlawn City Sch. Dist. Bd. of

Educ., No. 5:17cv1664, 2020 WL 435385, at *19-22 (N.D. Ohio Jan.

28, 2020) (affirming the administrative decision finding that

the district did not violate its Child Find obligations –

premised on allegations that the student’s autism, depression,

and anxiety diagnoses and hospitalization for mental-health

problems created a suspicion of disability – based on evidence

that the student behaved normally in school, achieved good

grades, and participated in extracurricular activities).

Significantly, to violate Child Find, “the school district

must have been on notice not only of the student's disability

but also of the student's need for special education services.”

K.S., 2020 WL 2899258, at *9 (citing D.K., 696 F.3d at 251). As

this issue was not decided below, the Court is unable to

conclude that Plaintiffs’ have met their burden that they are

entitled to judgment as a matter of law. This decision should

not be interpreted as the Court concluding that MTBOE

definitively met its Child Find obligations or otherwise did not

deprive J.A. of a FAPE as alleged in Count 1 of the 2021

complaint.

The Court likewise will decline to grant MTBOE’s cross-

motion for summary judgment. MTBOE relies heavily on ALJ

Tuohy’s determinations, (ECF 152 at 31-38), which – as

referenced – expressly did not incorporate Plaintiffs’ Child

Find allegations. Based on the record before it, the Court

cannot conclude that no disputed material facts exist concerning

provision of a FAPE to J.A., particularly when the

administrative decisions below may have been tainted by to-be-

determined procedural flaws.

Plaintiffs’ motion as to Counts 10 and 16 of the 2020

complaint and Count 1 of the 2021 complaint and MTBOE’s cross-

motion will both be denied without prejudice.

D. MTBOE’s Motions to Seal (ECF 130; ECF 177)

Finally, the Court turns to MTBOE’s motions to seal various

motions, exhibits, and correspondences. (ECF 130; ECF 177).

Motions to seal within this District are governed by Local Civil

Rule 5.3. See Medley v. Atl. Exposition Servs., Inc., 550 F.

Supp. 3d 170, 203 (D.N.J. July 26, 2021). Local Civil Rule 5.3

requires that motions to seal be made via a single, consolidated

motion on behalf of all parties, L. Civ. R. 5.3(c)(1), and

include an index providing with particularity (a) the nature of

the materials or proceeding at issue, (b) the private or public

interests warranting the relief sought, (c) the clearly defined,

serious injury that would result without relief, (d) an

explanation as to why less restrictive alternatives are

unavailable, (e) any prior orders sealing the same materials,

and (f) the identity of any objector, L. Civ. R. 5.3(c)(3).

Courts are required to make findings on the Local Civil

Rule 5.3(c)(3) factors in orders and opinions concerning motions

to seal or otherwise restricting public access. L. Civ. R.

5.3(c)(6); Sanofi-Aventis U.S. LLC v. Novo Nordisk Inc., No.

3:16-cv-09466, 2018 WL 10911501, at *1 (D.N.J. June 19, 2018).

There exists a presumption in favor of public access to judicial

records, which movants may overcome only with a showing of “good

cause” – that is “a particularized showing that disclosure will

cause a ‘clearly defined and serious injury’” – that materials

should be protected. See Medley, 550 F. Supp. 3d at 203-04

(quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d

Cir. 1994)).

MTBOE’s motions to seal are substantially similar to one

another. ECF 130 seeks to seal a letter directed to Judge

Skahill concerning discovery; exhibits including requests for

admissions and responses that include J.A.’s full name,

evaluation information, and educational goals and whether she

achieved them; evaluation records; progress reports;

correspondences; portions of the administrative record including

ALJ Tuohy’s February 22, 2021 final decision; and MTBOE’s

December 9, 2022 motion for summary judgment and related

exhibits including a statement of facts. (See ECF 130-1 at 1,

6).

ECF 177 seeks to seal MTBOE’s opposition to Plaintiffs’

December 9, 2022 motion for partial summary judgment, its cross-

motion for summary judgment with exhibits including motions and

transcripts from administrative proceedings, the complaint filed

under Docket No. 1:21-cv-06283 and related answer,

correspondences between NJDOE and the United States Department

of Education predating this matter, a report of the New Jersey

Special Education Practitioners, and MTBOE’s January 11, 2023

motion for partial summary judgment and related exhibits

including a statement of facts. (ECF 177-1 at 1, 6).

Before turning to the substance of MTBOE’s motion, the

Court addresses its preliminary concerns. First, from the

Court’s review of the docket, it appears as though several of

the documents sought to be sealed – a letter, (ECF 124);

motions, (ECF 129; ECF 153; ECF 171); and exhibits, (ECF 156;

ECF 160) were not filed under seal and thus have been open on

the public docket. To the extent that these documents were

confidential, ”[i]t is well established that once confidential

information has been published, it is no longer

confidential.” Janssen Prods., L.P. v. Lupin Ltd., No. 2:10–

05954, 2014 WL 956086, at *3 (D.N.J. Mar. 12, 2014); see

also Constand v. Cosby, 833 F.3d 405, 410 (3d Cir. 2016)

(“Public disclosure cannot be undone because, as the Second

Circuit has explained in similar circumstances, ‘[w]e simply do

not have the power, even were we of the mind to use it if we

had, to make what has thus become public private again.’”

(alteration in original) (quoting Gambale v. Deutsche Bank AG,

377 F.3d 133, 144 (2d Cir. 2004))). The Court thus may not and

will not seal what has already been made public.

Second, both of MTBOE’s supporting briefs state that it

seeks to seal not only the documents expressly identified, but

also ”any responses thereto.” (ECF 130-1 at 6; ECF 177-1 at

6). Providing such relief would create a host of practical

complications, not the least of which identifying which filings

constitute “responses thereto” to any of the identified

documents. Presuming that, at the very least, such filings

would include oppositions and replies to MTBOE’s motion

practice, such filings have already been published on the public

docket and may not be sealed for the same reasons stated

above. Finally, by not identifying specific documents to be

sealed, MTBOE’s request prevents the Court from undergoing the

analyses required by Local Civil Rule 5.3(c), balancing the

interests at stake with the presumption of public access. The

Court concludes that doing so would “override the local rules by

issuing a prospective order to seal.” See Schatz-Bernstein v.

Keystone Food Prods., Inc., No. 08–3079, 2009 WL 1044946, at *3

(D.N.J. Apr. 17, 2009).

On the merits, the certifications accompanying MTBOE’s

motions state generally that the documents to be sealed contain

highly sensitive information including special-education

classifications and placements that would cause irreparable harm

if disclosed; the circumstances of this case create a

possibility that an individual reading the public record may

deduce J.A.’s identity, rendering initials and other

abbreviations insufficient; and no less-restrictive alternatives

to sealing exist “because the administrative record and other

discovery documents are integral to the matter’s

adjudication.” (ECF 130-2 at 11-16; ECF 177-2 at 9-14).

The Court’s concurs in part following its own review of the

documents sought to be sealed. These documents include

evaluation records; progress reports; and requests for

admissions and related answers that reveal J.A.’s name,

evaluation information, IEP goals, and similar information for

which the Court does not dispute that there is a legitimate and

compelling privacy interest. See E.K. v. N.J. Dep’t of

Educ., No. 20-14409, 2020 WL 12188149, at *1 (D.N.J. Nov. 19,

2020).

Other documents sought to be sealed, however, including

letters to Judge Skahill, motions filed in this matter, portions

of the administrative record including motion practice, the

complaint filed under Docket No. 1:21-cv-06283, a memorandum of

agreement for professional services between NJDOE and OAL, an

apparent presentation on special education dispute resolution,

and other documents not specific to this matter are not readily

identifiable as implicating specific and identified privacy

interests. MTBOE has not included indices with its motions as

contemplated by Local Civil Rule 5.3(c) or otherwise made

individualized arguments as to any of the documents sought to be

sealed. Despite assertions made in its certifications that

less-restrictive alternatives are unavailable due

to their importance in this litigation, (ECF 130-2 at 15; ECF

177-2 at 13), the Court cannot find that no possible

alternatives exist between the documents’ complete sealing and

their total exclusion from this case.

Therefore, because the motions and supporting materials do

not indicate the specific private and public interests

implicated and serious injuries that would result from the

disclosure of many records sought to be sealed, or why efforts

short of complete sealing would be insufficient for documents

containing apparently sensitive information, the Court will deny

MTBOE’s motions without prejudice as overly broad. See Medwell,

LLC v. Cigna Corp., No. 20-cv-10627, 2020 WL 7694008, at

*4 (D.N.J. Dec. 28, 2020) (“A motion to seal is overbroad where

the moving party’s interest ‘can be adequately served by filing

a more narrowly tailored’ motion to seal.” (quoting Bock v.

Pressler & Pressler, LLP, No. 11-07593, 2014 WL 1233039, at *4

(D.N.J. Mar. 25, 2014))).

MTBOE’s references to the Federal Family Educational Rights

and Privacy Act (“FERPA”) and L.R. v. Camden City Public School

District, 171 A.3d 227, 230 (N.J. Super. Ct. App. Div. 2017), do

not compel a different result. L.R. is factually

distinguishable as it involved efforts by an advocacy

organization and parent to obtain settlement agreements and

other records indicating services provided to students, not

filings made on a judicial docket. See 171 A.3d at

230. Further, faced with similar arguments advocating for the

sealing of a complaint and related exhibits, a court within this

District persuasively concluded that FERPA compliance could be

achieved through means less restrictive than sealing a due

process petition, brief, and other legal documents – including

redaction. See Hatikvah Int’l Acad. Charter Sch. v. E.

Brunswick Twp. Bd. of Educ., No. 20-2382, 2020 WL 4448988, at *2

(D.N.J. Aug. 3, 2020). The Court so finds here.

MTBOE’s motions will be denied and the Court will provide

it thirty days following the filing of this opinion and entry of

a corresponding order to renew its motions. Any renewed motion

shall be a joint motion which complies with Local Civil Rule

5.3(c) and includes an index indicating the basis for sealing or

redaction for each exhibit sought to be sealed or redacted in

accordance with the factors provided by Local Civil Rule

5.3(c)(3).

IV. Conclusion

For the reasons stated above, Plaintiffs’ motions for

partial summary judgment, (ECF 145; ECF 196), MTBOE’s cross-

motion for partial summary judgment, (ECF 153), and MTBOE’s

motions to seal, (ECF 130; ECF 177), will each be denied without

prejudice. State Defendants shall file a letter on the docket

within fourteen days proposing discovery necessary to respond to

a renewed summary judgment motion and a related proposed

schedule. The parties may file a renewed motion to seal within

thirty days that otherwise complies with the requirements of

Local Civil Rule 5.3(c).

An Order consistent with this Opinion will be entered.

Date: August 24, 2023 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.