KQ obo NQ v. Deptford Township BOE | Case 02364-23 | 2023-03-23

New Jersey is an Equa l Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION EMERGENT RELIEF OAL DKT. NO. EDS 02364-23 AGENCY DKT. NO. 2023-35598 K.Q. ON BEHALF OF N.Q., Petitioner, v. DEPTFORD TOWNSHIP BOARD OF EDUCATION Respondent . Bradley R. Flynn, Esq., for petitioner (Montgomery Law, PLLC, attorneys) Albert K. Marmero , Esq., for respondent (Long, Marmero & Associates, LLP, attorneys) Record Closed: March 22, 2023 Decided: March 23, 2023 BEFORE JUDITH LIEBERMAN , ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY By a reques t for emergent relief pursuant t o t he Individuals with Disabilities Education Act ( IDEA), petitioner K.Q., on behalf of her min or son N.Q., seeks an order find ing that N.Q. was disciplined and improperly removed from school for more than ten days, without a manifestation determination, by respondent, Deptford T ownship Board

OAL DKT. NO. EDS 02364-23 2 of Education . Petitioner contends that N.Q. ’s current placement at Deptford High School (DHS ) is the appropriate sta y-put placement and th us seeks an order directing respondent to return N.Q. to DHS; resume his inst ruction pursuant to his individualized education p lan (IEP) and conduct behavioral assessments including a threat assessment and psychiatric evaluation . She also asserts that the texts that were the subject of part of N.Q.’s suspen sion were written outsid e the school campus and were not di rected to school personnel. Thus, they sho uld not have been the su bject of disciplin ary action. She further asserts that the offending texts are evidence that N.Q. is regressing while suspended at home a nd not receiving behavioral supports. Respondent did not file an answer or certification in response to the petition. It nonethele ss asserts that N.Q. was not suspended after he treated a teach er disrespectfully and yelled at him. Rather, he was placed on an approved administrative leave that was extended for two additional days so that the parties could explore an out- of-district placement. Respondent further contends that N.Q. was suspended for only eight days, a fter it learned that he sent inappropriate, threatenin g text messa ges. Respondent a rgues, in the alternative, that, because K.Q. consented to the first “cool down” day, if the other two “administrative leave ” days are considered to be suspension s, N.Q. was su spended for only ten days. It was thus not required to conduct a manifestation determination. Responden t also asserts that it did not change N.Q .’s placement and that any discussions about a change were informal. It concedes that N.Q. is entitled to return to school at the end of his suspens ion and that it is not purs uing a n out -of-district placement at th is time. Consequently, it agrees that his-stay put placement is DHS. Further, it asserts that District policy permits discipline for student speech that occurs outside the school campus. The Request for Em ergent Relie f was transmitted by the Dep artment of Education, Office of Special Education to the Office of Administrative Law, (OAL) where it was filed on March 16, 2023 , as a contested case . N.J.S.A. 52:14B-1 to N.J.S.A. 52:14B-15; N.J.S.A. 52:14F-1 to N.J.S.A. 52:14F-13. The part ies presented oral

OAL DKT. NO. EDS 02364-23 3 argument on March 22, 2023 , by way of Z oom video techno logy. Additional exhibits were submitted after the hearing, and the record closed on March 22, 2023. FACTUAL DISCUSSION The following , which is derived from the petition and its supporting documents, oral argument and exhibits in the record, is undisputed 1 and, therefore, I FIND the following as FACT: N.Q. is an eleventh -grade student who is eligible for spe cial education and related services under the classification of Emotional Regulation Impairment (ERI). He has been diagnosed with attention deficit hyperactivity disorder (ADHD) , anxiety disorder and oppositional defian t disorder. P-H. His IEP places him in the ERI classroom and provides for counseling services. He is currently suspended from school, and remains at home, due to disciplinary action taken by responden t. On March 13, 2023, a Monday, respondent learned that N.Q. used inappropriate and/or threatening langua ge toward a teacher , Mr. C.2 K.Q. was asked to pick him u p from school. She reluctantly picked him up and, later that day, sent an email to school personnel in which she wrote that N.Q. want ed to stay in Mr. C.’s class and did not want to attend another school. She added , “We discussed how he can stay calm in class. So I do not want him moved to another school. What do we do a bout Tuesda y, especially with testing? ” P-G at 2.3 The following mo rnin g, March 14, 2023, the school social w orker, Joann Jones, replied, telling K.Q. to “[k]eep him at home right now.” Id. at 1-2. She advised that she needed to cons ult with other staff members, including Mr. C., and that they would address the pendi ng testing. Ibid. K.Q. asked if N.Q. was suspended. Jones replied, “At this time, he is marked administrat ively excused.” Id. at 1. K.Q. was not told when N.Q. could return to school. Between March 13 and March 15, respondent independently explored potential out-of-district placements for N.Q., who remained home during this time. 1 Respond ent did not file an Answer in respons e to the Petition for Emergent Relief or a br ief, certification or exhibits in support of its position. I permitted Michael Nicely, its Dir ector of Special Services, to tes tify so that he could answ er specific questio ns. I also permitted K.Q. to testify for the same reason. 2 The teacher’s full na me is not use d here to protect his privacy. 3 This and all of t he following exchanges were by email.

OAL DKT. NO. EDS 02364-23 4 On Wednesday, March 15, 2 023, Jones advised K.Q. that there was “information ” that N.Q. was “involve[d] with threat [sic] to a staff member. Based on this information we are looking at out-of-district placement where more appropriate supports can be offered. ” P-F at 4. K.Q. asked if “out-of-district” meant “Gateway or somewhere else[.]” Ibid. Michael Nicely, Director o f Special Services and Special Programs, asked K.Q. if she could attend an in-person meeting the following day, March 16, 2023, so that they could “provide this information to ” her and “have a conversation on the ne xt steps regarding [N.Q.’s] education. ” Id. at 3. On Thursday, March 16, 2023, K.Q. advised that she was available for a meeting, by Zoom, that day or the following day. S he asked about the purpos e of the meeting and who would be in attendance. P-E at 1. Later that day, K.Q. wrote, “I will bring [N.Q.] to school tomorrow to take the 11 th grade test. As far as I’ve been told, he is not suspended and c an come in tomorrow for the test. Correct?” Ibid. She also asked if the meeting the following day could be conducted via Zoom. Nicely replied, “After discussion with the high s chool admini stration, [N.Q.] should not report to school tomorrow for testin g until we finish ou r investigation with the t ext messages. O ur attorney sent your attorney these text messages as well a nd we are awaiting his reply. We will discuss how [N.Q.] can test during make-ups.” Id. at 2. On Friday, March 17, 20 23, K.Q. rep lied, “I have been trying to schedule this meeting with you, but I have not heard back from you about actually getting this scheduled. Can w e sched ule the meeting for today via Zoom? My lawy er will be attending with me. It is imperative that we have thi s meeting to discuss the alleged threat, so [N .Q.] can return to school. H e is falling behind and I am worried that he is now regressing. C an we please get this scheduled for today? ” Id. at 1-2. Later that day, Nicely re sponded t hat further communicati on about “next steps” would be sent directly to K.Q.’s attorney. Id. at 1. The “information ” that Jones referenced on March 15, 2023, is text messages sent by N.Q. that were und erstood to i nclude threats against Mr. C . Another student shared the text m essages with respondent. P-D at 2. N.Q. wrote, “[C.] is a bi tch. If I

OAL DKT. NO. EDS 02364-23 5 catch his ass outside school all ti res gonna [sic] be slashy [laugh ing/crying emoji]. . . . My mom [on the phone] with a lawyer rn [sic] she tryna [sic] get me back in[.]” P-C at 1. N.Q. also wrote, “[C.] got scared.” Id. at 2. A person with whom N.Q. was texting asked why [C.] would be scared of him. N.Q . replied, “That’s what he told [the] school [laughing/crying e moji].” Id. at 3. He added three more “laughing/cryin g emojis” and wrote, “He was afraid a mf [sic] was gon [sic] hit him he said .” Ibid. In a March 17, 2023, letter, respondent’s counsel a dvised petitioner’s counsel , “Given the actions of N.Q., the District is issuing disciplinary action for the threatening text messages sent on M arch 15, 2 023. N.Q. is to receive an eight (8) day exte rnal suspension beginning on Thur sday, March 16, 2023, through Monday, March 27, 2023.” P-B at 2 . The letter also a dvised that the “District is actively working to provide hom e- instruction to N.Q. while serving the suspension . And finally, the District is actively working to condu ct a manifestation determination.” Ibid. Respondent has not proposed to K.Q. a revised IEP to change N.Q.’s placement to home instruction ; in vited K.Q. to or convened an IEP meeting; provided her with written n otice of its i ntention to change his placement ; invited her to or scheduled a manifestation determination meeting 4 or offered to r eevaluate N.Q. or conduct a functional behavior a ssessment or threat assessment . N.Q. is permitted to return to school after March 27, 2023. A November 30, 2022, functional behavior assessment (FBA) reported that N.Q. was referred for the assessment “due t o his ongoing concerns regarding lack of willingness to complete classwork and disrespect toward authority figures.” P-H at 1. The FBA established a behavior intervention plan (BIP), which provides in relevant part: 1. When feelings of frustration or a nger begin to rise, [N.Q.] will move to a co ol down area in the classroom where he can have some time to de-escalate himself. 2. . . . 4 Although there was a n assertion that , the morning of the hearing, an email was sent t o K.Q. about a manifestation determination , the email was not offer ed into evidence.

OAL DKT. NO. EDS 02364-23 6 3. [N.Q.] will ask to speak with a trusted adult in the school when he is feeling a loss of c ontrol over his emotions. [P-B at 4.] The FBA also recommended the following responses by teachers and staff: • Teacher will remind [N. Q.] to remove himself to a quiet part of the room if his verbal disrespect be gins to escalate. • If [N.Q.] becomes verbal ly ag gressive, the teacher w ill disengage from the altercation by making a statement similar to, ‘I can see that you’re becoming upset. We can talk about that at a la ter time. ’ The teacher will then physically move away from [N.Q.]. The teacher should address this at a later time whe n b oth parties are in a calm state. . . . • When [N. Q.] engages in a target behavior, that behavior should be ignored if safe to do so. [Id. at 5.] N.Q.’s IEP and BIP do not provide for “cooling off ” or “administrative leave” days. As of the time of the hearing, N.Q. has not received emotional regulation or behavioral supports since March 1 3, 2023. He a lso h as not received evaluation s or counseling since March 13, 2023 . There is no evidence in the record demonstrating that academic instruction was arranged the day prior to the hearing. District Policy 5610 required that educational services shall be provided within five d ays of the suspension f or “short- term” suspensions of “not more than ten con secutive school days[.]” P-J. LEGAL ANALYSIS AND CONCLUSIONS Emergent Relief N.J.A.C. 1:6A-12.1(a) provides that a parent, guardian, board or public agency may apply in writing for emergency reli ef. An applicant for emergency relief must set forth in the application the specif ic relief sought and the specific circumstances they

OAL DKT. NO. EDS 02364-23 7 contend justify the relief sought. Emergent relief shall only be requeste d for the following issues : i. Issues involving a break in the delivery of services; ii. Issues involving disciplinary action, includi ng manifestation determinations and determinatio ns of interim alternate educational setting s; iii. Issues concerning placement pend ing the outcome of due process proceedings; an d iv. Issues involving graduation or participation in graduation ceremonies. [N.J.A.C. 6A:14-2.7(r)1] Here, N.Q. has been removed fro m school and has been home since March 13, 2023. Putting aside wh ether he was, in fact, suspended from March 13 , through Ma rch 15, he has been out o f school, without instruction or b ehavioral supports, since March 13. Although respondent asserted that it began to offer instruction on March 21, there is no evidence in the record concerning the nature and extent of any su ch instruction. There is no ev idence that respondent provided behavioral services required by the IEP. For these reasons, I CONCLUDE that petitioner has established that the issu e in this matter concerns a break in the de livery of services as well as disciplinary action and, thus, emergent relief may be sought. The standards for e mergent relief are set fort h in Crowe v. DeGioia, 90 N.J. 126 (1982), and are codified at N.J.A.C. 6A :3-1.6. The petitioner bear s the burden of proving: 1. that the party seeking e mergent relief w ill suffe r irreparable harm if the reques ted relief is not granted; 2. the existence of a settled legal right underlying the petitioner’s claim; 3. that the party see king emergent relief has a likelihood of prevailin g on the merits of the underlying claim; and

OAL DKT. NO. EDS 02364-23 8 4. when th e equities and the interests o f the parties are balanced, the party seeking eme rgent relief will suffer greater harm than the respondent. [Crowe, 90 N.J. at 132-34.] Petitioner must make a “c lear showing of immediate irreparable injury,” or a “presently existing actual threat; (an injunction) may not be u sed simply to eliminate a possibility of a remote f uture injury, or a future invasion of r ights, be t hose rights protected by statute or by c ommon law.” Cont’l. Group, Inc. v. Amoco Chems. Corp ., 614 F. 2d 351, 359 (D.N.J. 1980). In an educational settin g, “irreparable h arm may be shown when there is a s ubstantial risk of physical injury to t he child or others, or when there is a significant interruption or termination of educational services.” Ocean Twp. Bd. of Educ. v. J.E. and T .B. obo J.E. , OAL Dkt. No. EDS 0059 2-04, 2004 NJ AGEN LEXIS 115, at *8 (February 23, 2004). Petitioner contend s that irreparable harm is established because N.Q. has been out of school since March 13, 2023, when he was sent hom e, and has since received no behavioral supports or instruction. Further, petitioner contend s that home suspension has had a detrimental emotional impact on N.Q. and that this has caused him to regress. Respondent argues that it initiated instr uction an d is planning to conduct behavio ral and other assess ments; however, as noted, there is no evidenc e of either. That N. Q. has not received academic instru ction for a per iod of days can be remedied by way of compensatory education. Thus, this does not support a finding of irreparable harm. As noted, petitioner argues that N. Q. has regressed emotionall y and cites to the text messages as evidence of this. S he suggests that N.Q. would not ha ve written the messages had he not been removed from school . This is not supported by the evidence in the record and is, possibly, contradicted by the FBA that references “ongoing concerns ” abou t his “disrespect towa rd au thority figures[.] ” P-H. Without more, I am unable to make findings concerning the emotional impa ct of the home placement upon N.Q.

OAL DKT. NO. EDS 02364-23 9 Petitioner appears to argue that respondent ’s failure to conduct a manifestation determination caused irrepa rable harm. Pursuant to 20 U.S.C. § 1415(k)(1)(B) an d N.J.A.C. § 6A:14-2.8(a), a school may remove a child with disabili ties for up to ten days without providing any educational services, as long as it would not provide services to a student without disab ilities. However, when , as here , a special ed ucation student is subject to discipline for violation of a code of student conduct, the district cannot remove the st udent from h is placement for more than ten days unless a manifestation determination is performed. 20 U.S.C. §1415 (k)(1)(E); N.J.A.C. 6A:16-7.3(a)(7). The goal of a manifestation hearing is t o determine whether the conduct for which the child is being disciplined was a result of o r affected by the student’s di sability or a failure to implement the student’s IEP. In makin g a manifestation determination , the IEP team must consider all relevant information in the student’s file, including the child’s IEP, any teacher observations and any relevant information pro vided by the parent to determine: If the conduct in question wa s caused by, or had a direct and substantial relationship to, the child’ s disability; or If the conduct in question was the direct result of the [District’s] failure to implement the IEP. [34 C.F.R. 300.530(e); 20 U.S.C. § 1415(k)(1)(E)(i), (ii).] If the IEP team, which typically includes the parent, finds that the behavior was a manifestation of the student’s disability, the IEP tea m must either conduct a functional behavioral assessment and implement a behavioral intervention plan or review and modify any existing plan as necessary, and return the child to the placement from which he was remov ed, unless there is agreement that a change in placement is appropriate. 34 C.F.R. 300.530(f). If the manifestation determination review does not find one of the above criteria are met, then the school may c ontinue with the student discipline (including expulsion) just as it would for any pupil without an IEP. However, the student, while suspended, must continue to receive the educational services enabling him to contin ue to participate in the general educat ion curriculum in another setting, and to progress toward meeting the goals established in his IEP. 20 U.S.C. §1415 (k)(D)(1). When th e parent of a child with a disability disagrees with the ma nifestation determination, they may appeal the decision by requesting a hearing . 34 C .F.R. 300.532.

OAL DKT. NO. EDS 02364-23 10 Although respondent asserts that N.Q. was suspended for eight days because he was on an excused administrative absence from March 13 through March 15, there is no evidence in the record that an administrative absence is permissible. N.Q.’s IEP does not authorize such absences and h is BIP provided for in -school “cooling down” periods or responses to misb ehavior. I t did not authorize a n involunt ary leave of absence. It is unreasonable to treat the first three days as anything other than a suspension. Indeed, respondent initially considered pivoting to an out -of-district placement, suggesting that it did not intend to return N.Q. to schoo l after March 13. Regardless of respondent’s choice o f words, the first three days that N. Q. was home amounted to a suspension. See Christine C. v . Hope Twp. Bd. of Educ. , 2021 U.S. Dist. LEXIS 20132 ( D. N.J. 2021)(fin ding that school district ’s actions amounted to a change of placement notwithstanding its description of its actions as a “mere suspension ”). I therefore CONCLUDE that respondent impo sed a n eleven-day suspension that commenced on March 13, and is scheduled to end on March 27, 2023. Respondent is required to conduct a manifest ation determination by the te nth day. As of the date of the hearing , respondent still had time to do this. Emergent relief is inappropriate when the harm has not yet occurred. I therefore CONCLUDE that petitioner has not met her bu rden with respect to the first Crowe prong and, thu s, emergent relief cannot be granted. Nonetheless , I underscore respondent ’s obligation to conduct a ma nifestation determination immediately, in accordance with the controlling law and regulations , and immediately implement any remedial me asures that are require d as a result of the manifestation determination. It must also provide full instruction to N.Q. during the remainder of his suspension. 5 5 Petitioner also asserted that N.Q.’s text messages could not be the subject of discipline because they were sent while he was not on school property. Petitioner cites to J.S. v. Manheim Twp. Sch. Dist., 231 A.2d 1044, 2020 Pa. Commw. LEXIS 397 (May 13, 2020), as support for this. The Pennsylvania Supreme Court heard the appeal of this matter and did not so rul e. Rather, its findings were based upon a factual record that was developed during a full hearing concerning the student’s communications . J.S. v. Manheim Twp. Sch. Dist. , 263 A.3d 295, 2021 Pa. LEXIS 3998 (November 17, 2921 ). Here. the record has not been f ully developed such that this analysis could be p roperly conducted. Petitioner has offered no other support for her assertion. Accordingly, she has not met her burden with respect to this claim. Petitioner also asserted that respondent is obligated to co nduct a threat assessment. NJ.S.A. 18A:17-43.4 provides for the establishment of threat assessment teams in public scho ols and req uires each school district to develop and implement a policy “concerning the assessment and intervention of students whose be havior pose s a threat to the safety of the school community, and appropriate actions to be taken, including available so cial, devel opmental , and

OAL DKT. NO. EDS 02364-23 11 ORDER Based on the foregoing, petitioner’s request fo r emergent relie f i s DENIED without prejudic e. If petitioner determines that respondent has not complied with it s obligations under the ID EA and its regulations , she may renew her application for emergent relief. This decisi on on application for emergency relief shall remain in effect until the issuance of the decision on the merits in this matter. The hearing having been requested by the parents, this matter is hereby returned to the Department of Education for a local reso lution session, pursuant to 20 U.S.C. § 1415(f)(1)(B)(i). If the parents or adult student feel that this decision is not being fully implemented with respect to program or services, this concern should be communicated in writing to the Director, Office of Special Education Programs. March 23, 2023 DATE JUDITH LIEBERMAN , ALJ Date Received at Agency: Date Mailed to Parties: law enforcement resources, for students whose behavior is identified as posing a threat to the safety of the sc hool commun ity.” N.J.S.A. 18A:17-43.4. Further, “[w]hen assessing a student whose behavior may pose a threat to the safety of the school comm unity, in the case of a student with an Individualized Education Program (IEP) or 504 plan, the threat assessment team shall consult with the IEP team or 504 team to determine whether the aberrant behavior is a threat to school safet y and is be ing properly addressed in a manner that is required by N.J.A.C. 6A:14 and all federal and State special education laws.” N.J.S.A. 18A:17-43.5(b). However, while the Governor signed the law on August 1, 2022, it “shall take effect immediately and shall f irst apply to the first full school year next following the date of enactment.” In the August 1, 2022, press release announc ing his signing of the new law, Governor Murphy clarified that this means “[t]his law will take effect immediately fo r the 2023– 2024 school yea r.” See Governor Murphy Signs Legislation Requiring NJ Public Schools to Develop Threat Assessment Teams (August 1, 2022), available at nj.gov/governor/news . Thus, the law does not apply, and school districts need not comply with the requirem ents of N.J.S.A. 18A:43.4 to N.J.S.A. 18A:43.6, until the start of the 2023 – 2024 school year, or July 1, 2023. See N.J.S.A. 18A:36-1 (providing that “[t] he school year f or all schools in the public school system shall begin on July 1 and end on June 30”).

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OAL DKT. NO. EDS 02364-23 13 APPENDIX WITNESSES For petitioner K.Q. For respondent Michael Nicely EXHIBITS For petitioner P-A None P-B Marmero letter, March 17, 2023 P-C Screenshots of text messages P-D Email exchanges P-E Email exchanges P-F Email exchanges P-G Email exchanges P-H Functional Behavior Assessment , November 30, 2022 P-I Photographs P-J Suspension Proce dures and Pu pil Discipline/Code of Conduct For respondent None