LJ obo ZW v Newark City BOE | Case 08980-22 | 2022-10-24

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION FOR EMERGENT RELIEF OAL DKT. NO. EDS 08980-22 AGENCY DKT. NO. 2023-35037 L.J. ON BEHALF OF Z.W., Petitioner, v. NEWARK CITY BOARD OF EDUCATION, Respondent . ___________________________________ L.J., petitioner, appearing pro se Sabrina Styza, Esq., for respondent, Newark Public Schools BEFORE NANCI G. STOKES, ALJ: Record closed: October 21, 2022 Decided: October 24, 2022 STATEMENT OF T HE CASE AND PROCEDURAL HISTORY On October 6, 2022, petitioner L.J., filed a request for emergent relief with the Office of Special Education ( OSE) seeking an order to return her minor child, Z.W., to high school after being suspended for a fight, having been out of school for fourteen days.

OAL DKT. NO. EDS 08980-22 2 In her petition, L.J. highlights that Newark failed to conduct a required manifestation meeting and that Z.W. has not received services si nce the fight on September 16, 2022. L.J. also desires an IEP meeting to discuss Z.W. ’s return to a regular program high school. Newark opposes this application asserting that L.J. fails to meet the criteri a for emergent relief unde r N.J.A.C. 1:6A-12.1(e). On October 7, 2022, OSE transmitted the emergent application to the Office of Administrative Law (OAL) for a determination as a contested matter. Newark submitted opposition to the request for emergent relief on October 17, 2022, and I conducted oral argument on October 21, 2022, via Zoom due to continuing COVID -19 restrictions.1 FINDINGS OF FACT Based on t he documentary evidence presented by the parties in support of and in opposition to the motion, and based on the arguments presented during oral argument and my assessment of L.J.’s credibility, I FIND the following as FACT for purposes of this application only: Z.W. resides in the Newark School District with his mother, L.J. Z.W. is eligible to receive special education and related services with the classification of other health impaired with a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) . Z.W. attended several Newark high schools before attending Central High School ( “Central”) this school year and is in twelfth grade. The last placement the parties agreed upon is Central. Specifically, Z.W. was enrolled at Weequahic Hig h Sch ool from September 7, 2021, to September 15, 2022. Z.W. transferred to Central on September 15, 2022. Previously, Newark enrolled Z.W. at Malcolm X. Shabazz High School and North Star Academy. Although L.J. does not dispute problems at Z.W.’s high schools before 1 The OAL scheduled o ral argument on the emergent application for October 18, 2022. T he parties agreed to attempt a resolution and reschedul e the argument fo r October 21, 2022.

OAL DKT. NO. EDS 08980-22 3 Central, L.J. di sputes Newark’s characterization of those events and whether Z.W. could return to those schools. Currently, Z.W. has insufficient credits to earn his diploma at the end of this school year. On September 16, 2022, Z.W. was invol ved in a fight with another student , and the Incident Report identifies that a “minor injury” occurred. Newark suspended both students from September 19, 2022, until September 22, 2022, or four days. Central’s Principal, Terry Mitchell, issue d a Notice of Suspens ion dated Septembe r 16, 2022, noting an attack on students as its basis. See, Mitchell Certification, Exhibit B. 2 After the fight, Mitchell spoke to Z.W. , who did not dispute the incident captured by video. Mitchell contacted L.J . immediately after the fight to obtain he r consent to release Z.W. from school, which she gave. Mitchell also requested that L.J. come to school to discuss the incident, but L.J. was out of town. Yet, Newark did not permit Z.W. back to Central after hi s suspension. Instead, on September 20, 2022, M itchell called L.J. to discuss Z.W.’s need for additional intervention to address his conduct. Mitchell offered alternative high school environments, including Newark Night School and Lead Academy, a charter school in the District, and Leaders for Life, a private placement. L.J. did not agree with those alternatives and believes night school for a student with Z.W.’s disability is inappropriate, leaving him at home alone during the day. During that phone conversation, Mitchell advi sed L.J. that Z.W. woul d not be able to return to Central because she believed Z.W. needed additional supports, and his misconduct was unacceptable. On September 27, 2022, Mitchell again called L.J. to advise her that Z.W. would be enrolled at Newark Nigh t School beginning on O ctober 3, 2022. Newark attempted to provide Z.W. with a Chromebook to facilitate that placement, but L.J. refused. L.J. filed her petition and request for emergent relief because she believes Central did n ot follow the correct pro cedures, and her son wa s not allowed to return to 2 While Newark supplies a copy of the letter, the attachments referenced, incl uding an appeal form , are absent from the record.

OAL DKT. NO. EDS 08980-22 4 school, leaving him without services under his IEP. Specifically, Central removed Z.W. without a manifestation meeting. After L.J. filed her petition and emergent relief applica tion, Central advised L.J. of a meeting on Octob er 14, 2022. L.J. then accepted the Chromebook, declaring that her acceptance was only for attendance at the meeting. Central conducted a manifestation meeting on October 14, 2022. Newark’s director of special education, supervisors of special education from Central High School and Newark Evening High School, the case manager, and L.J. attended the meeting. After discussions of Z.W.’s disruptive conduct leading to the suspension, his educational status, his need for academic and behavioral supports, his IEP, and his educational record, the team concluded that Z.W.’s acts were not a manifestation of his disability. At this meeting, L.J. did not agree to placement outside a regular high school program or even home instruction. Ne wark maintains that ho lding a manifestation meeting moots L.J.’s request for one. Despite efforts to do so, an IEP meeting to discuss neces sary educational services and an alternate placement did not occur after L.J. filed with OSE. L.J. expresses conce rn that Central’s Chil d Study Team does not know her son after only two days in school and urges that his prior case manager be involved. Newark facilitated a conversation between Z.W.’s case manager at Central and his last ca se manager. Still, L.J.’s refusal to meet or cons ider alternative placements has frustrated Newark’s attempts to move forward from the suspension and provide Z.W. with educationa l services under his IEP. LEGAL ANALYSIS AND CONCLUSIONS This case arise s under the Indi viduals with D isabilities Education A ct, 20 U.S.C. §§ 1400 to 1482 . One purpose of the Act is to ensure that all children with disabilities have available to them a “free appropriate public educa tion that emphasizes special

OAL DKT. NO. EDS 08980-22 5 education and r elated services designed to me et their unique needs a nd prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A) . This “Free Appropriate Public Education” i s known as FAPE. In New Jersey, the State Board of Education has promul gated rules following the standards outline d in the Act. N.J.A.C. 6A:14-1.1(b)(1); N.J.A.C. 6A:14-1.1 to -10.2. Under those rules, a parent or adult student may request a due process hearing before an administrative law judge (ALJ) to r esolve disputes "re garding ident ification, evaluation, re evaluation, classification, educational placement, the provision of a free, appropriate public edu cation, or disciplinary action." N.J.A.C. 6A:14-2.6(a); N.J.A.C. 6A:14-2.7(a). Further, under N.J.A.C. 6A:14-2.7(r), a party may request emergent relief f or the following issues: i. Issues involving a break in the delivery of serv ices; ii. Issues involving disciplinar y action, including manifestation determinations and determinations of interim alternate educational settings; iii. Issues conce rning placement pending t he outcom e of due process proceedings; and iv. Issues involving graduation or participation in graduation ceremonies. Undeniably, the case involve s Newark’s disciplinary action and a break in the delivery of services. Under N.J.A.C. 1:6A-12.1(e), an ALJ may or der emergency relief pending decision in the case, if the judge determines from the proofs that: 1. The petitioner will suffer irreparable harm if the requested relief is not granted; 2. The legal r ight underlying the petitioner’s claim is settled;

OAL DKT. NO. EDS 08980-22 6 3. The pe titioner has a likelihood of prevailing on the merits of the un derlying claim; and 4. When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the responden t will suffer if the requeste d relief is not granted. [Ibid.] To be successful, an applicant m ust satisfy all four requirements. Crowe v. DiGioia, 90 N.J. 26 (1982). However, a school district can make no changes to the student's program or placement pending a due process heari ng. N.J.A.C. 6A:14-2.6(d)(10); N.J.A.C. 6A:14- 2.7(u); see also , 20 U.S.C. § 1415(j). Indeed, 20 U.S.C. § 1415(j) sets forth one of the most significant safeguards in the Act, often called the "stay -put" provision. Id. This section provides that a child is to remain in their "th en-current educational placement" during the "pendency of any proceedings conducted pursuant to [IDEA]." Id.; N.J.A.C. 6A:14-2.6(d)(10); N.J.A.C. 6A:14 -2.7(u). The purpose of “stay put” i s to maintain the status quo for the child w hile the dispute over the placement o r program remains unresolved. Ringwood Bd. of Educ. v. K.H.J. , 469 F.Supp.2d 267, 270 –71. (D.N.J. 2006.) Notably, the "stay-put" provision "acts as an automatic preliminar y injunction" and "protects the status quo of a child's educational pl acement while a parent challenge s a proposed change to, or elimination of, services." Drinker by Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996) (discussing 20 U.S.C. § 1 415(j), the federal analog to New Jersey's sta y-put provision N.J.A.C 6A:14-2.7(u)). C.H. v. Cape Henlopen Sch. Dist. , 606 F.3d 59, 71-72 (3d Cir. 2010). In essence, the petitioner need not demonstrate that she meets the requirements of Crowe v. DiGioia , 90 N.J. 26 (1982), if the stay-put is appropriately invoked. Drinker, 78 F.3d at 864. Yet, exceptions exist to stay -put. First, although “the child shall remain in the then-current educational placement of the child,” the parties can agree to a different placement. 20 U.S.C.S. § 1415(j). Second, stay-put considerations y ield to the intra - state school district transfer provisions of N.J.A.C. 6A -14-4.1(g), requiring only

OAL DKT. NO. EDS 08980-22 7 “comparable” services to the prior program. See, J.F. v Byram Twp. Bd. of Educ., 629 F. App’x 235 (3rd Cir. 2015). Third, relevant here, 20 U.S.C. § 1415(k ) allows a school to s uspend, expel, or otherwise alter the educational placement of children with disabilities. Indeed, 20 U.S.C. § 1415(k) and N.J.A.C. 6A:14 -2.8 set fort h the procedures for disciplining students with disabili ties. Notably, a stude nt with disabilities su spended for ten days or fewer consecutive or cumulative school days is subject to the same district board of education procedures as nondisabled stud ents. 20 U.S.C. § 1415(k)(1)(B). At the time of removal, t he principal shall forward written notification a nd a description of the reasons for such action to the case manager and the student's parents. N.J.A.C. 6A:14 -2.8. Under N.J.A.C. 6A:14 -2.8(c)(1), if a school district suspends a student for more than ten c onsecutive school days, the suspension is removal , and the removal is a change in placement. If Central suspended Z.W. for only four days, as argued, the September 16, 2022, letter to L.J. would s how Newark complied with this requirement. However, becaus e Newark did not allow Z.W. ba ck to Central, the su spension continued well beyond ten days. Indeed, I CONCLUDE that Newark unilaterally changed Z.W.’s placement without L.J.’s consent by removin g Z.W. from Central. When there is a change in placement ca used by a suspension greater th an ten consecutive d ays, the district must conduct a manifestation determination by the tenth day of removal, to determine if the "conduct in question was caused b y, or had a direct and substantial relationship to, the child's disability; or . . . if the conduct in question w as the direct result of the district's failure to implement the IEP.” 20 U.S.C. § 1415(k)(1)(E)(i). If the conduct is determined to be manife station of the student's disability, the district cannot suspe nd and must return the student to his or her placement, unless the parent and district agree to change the student's placement. 20 U.S.C.A. § 1415(k)(1)(F)(iii).

OAL DKT. NO. EDS 08980-22 8 Here, there is no dispute that the manifestation meeting did not occur within ten days. The October 14, 2022, meeting led to Central’s conclu sion that Z.W.’s actions on September 16, 2022, were not a manifestation of his disability. That determination occurred after L.J. filed her pe tition and nearly a month after removing Z.W. from Central. Newark presents no written decis ion concerning the manifestation meeting. See, 20 U.S.C.A. § 1415(k)(1)(H). Even if the conduct is not a manifestation of the student's disability, discipline procedures applicable to children without disabilities still app ly. 20 § U.S.C. 1415(k)(1)(C). Further, although suspended, the student must continue to receive the educational services enabling the student to progress toward meeting the goals set out in the student's IEP. 20 U.S.C. § 1415(k)(D)(i). Given that the removal from school was more than t en d ays, N.J.A.C. 6A:16 -7.3, addressing long -term suspensions, would apply, including an explanation of the student’s due process rights under N.J.A.C. 6A:16-7.1(c)3. Central’s September 16, 2022, suspension letter does n ot apprise L.J. of her rights concernin g long-term suspensions, and Central provided no additional notice. While L.J. may not have challenged a four -day suspension concerning the fight she acknowledges, she disputes that her son was appropriately kept out of school for an extended period becaus e of that fight. Notwithstanding, 20 § U.S.C. 1415(k)(1)(G) permits school districts to remove a disabled student from their educational placement to an interim alternate education setting for up to forty-five days in specific circumstances, "without reg ard to whether the behavior is determined to be a manifestation of the child's disability,” including cases “where a child . . . has inflicted serious b odily injury” while at school. Id.; See also, 20 § U.S.C. 1415(k)(3)(b)(ii)(II) (allowing such change if the hearing officer concludes “that maintaining the current placement” of the child is “substantially likely to result in injury to the child or others”). In such a situation, under N.J.A.C. 6A:14 -2.7(n), a distri ct must request an "expedited hearin g" if it seeks "to remove" a student with disabilities from school because the distric t believes that "it is dangerous for the student to be in the cur rent placement," but "cannot agree to an appropriate placement" with the parent. Id. 20 §

OAL DKT. NO. EDS 08980-22 9 U.S.C. 1415(k)(3). L.J. did not accept an alternate placement, but Newark did not file an expedited due process petition. Failing to file an expedited application before removal can be considered a denial of FAPE. See, Christine C. v . Hope Twp. Bd. of Educ., 2021 U.S. Dist. LE XIS 20132. The Christine C. Court relied upon the holding in Honing v Doe, 484 U.S. 305, 327, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988 ), addressing whether school districts can change the placement of a student with a disability contrary to “stay put” protections when it feels that stu dent is “dangerous”: Congress attacked [ ] exclusionary practices [particularly regarding students with emotional disabilities, 82 percent of whom had unmet needs prior to the IDEA] . . . . and barred schools, through the stay-put provision, from changing [ ] placement over the parent's objection until all review proceedings were completed . . . . and allowed for interim placements [only] where parents and school officials are able to agree on one . . . . Conspicuously absent . . . is any emergency exception for dangerous students. [Ibid.] Notably, Honig highlighted the Department of Education ’s observ ation that , "[w]hile the [child's] placement may not be changed . . ., this does n ot preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others ." 484 U.S. at 325 . Indeed, the 2004 amend ments to the IDEA after Honig , inc luding 20 § U.S.C. 1415(k) , identify those mechanisms av ailable to school districts. See also, N.J.A.C. 6A:14-2.8, -2.7. As such, I CONCLUDE that Newark failed to follow procedures required under 20 U.S.C. § 1415(k), N.J.A. C. 6A:14-2.8, and -2.7, to remove Z.W. from Central for the incident on September 16, 20 22. Therefore, I CONCLUDE Newark must return Z.W. to Central, his last agreed -upon placement. In other words, Newark did not take the required steps for Z.W.’s “stay put” at Central to yield. Indeed, I base this determination on violations of the IDEA a nd stay-put protections rather than a sh owing of eme rgent relief factors. Drinker, 78 F.3d at 864. See, K.R. & J.W. obo L.W. v. Franklin Twp. BOE and Y.A.L.E. Sch ool Southeast , OAL Dkt. No. , EDS 1346 -22, Final Decision on Emergent Relief (February 25, 2022).

OAL DKT. NO. EDS 08980-22 10 I further CONCLUDE that the parties m ust promptly conduct an IEP meeting to discuss appropriate placement and whether Z.W. needs additional supports and services. Still, t he IDEA does not require that a school district place a student at a specific school chosen by his or her parents. W. Windsor-Plainsboro Reg'l Sch. Dist. Bd. of Educ. v. J.S., 2005 U.S. Dist. LEXIS 25855 (Oct. 31, 2005). This decision gr ants the relief requested by L.J., and nothing remains in this action, even though the parties a re still in disagreement. As noted, a mani festation meeting occurred, and I am dir ecting the parties to conduct the requested IEP meeting. Regardless, Newark can follow the correct due process procedures concerning its manifestation determination, includ ing notification, the now long -term suspension, and an expedited application for due process. Should L.J. dispute tho se actions , determinations, or a proposed IEP, she can challenge the outcome. Yet, from the record, those are future events . I am mindfu l that Newark attempted to address an appropriate placement given Z.W.’s disruptive behavior and problems at other area high schools. In other words, Newa rk c ommendably shifted its focus from discipline to addressing supports that it believed Z.W. needs f or success and graduation, given the problems occurring in multiple schools. Notably, Newark tried to address L.J.’s concerns by ensuring Z.W.’s current case manager had an opportunity to speak with his prior case manager to foster a better understanding of Z.W. given his short time at Central. L.J. has been unwilling to participate, given her belief that Central did not act appropriately or have her son’s i nterests in mind. Ultimately, however, the parties must cooperate and rebuild trust for Z.W.’s sake. ORDER Based on the foregoing, I ORDER that Newark return Z.W. to Central. I further ORDER that Central convene an IEP team meeting with L.J. within one week of this decision and that Newark immediately share information with L.J. concerning the alternative placements it recommends.

OAL DKT. NO. EDS 08980-22 11 This decision on application for emergency relief resolves all the issues raised in the due process complaint; the refore, no further proceedings in this matter are necessary. This decision on application for emergenc y relief is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and is appealable by filing a complaint and bringing a civil action either in the Law Division of the Superior Court of New Jersey or in a district court of the United States. 20 U.S.C. § 1415(i)(2). If the parent or adult student feels that th is 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. October 24, 2022 __________________________ DATE NANCI G. STOKES, ALJ Date Received at Agency _______October 24, 2022___________ Date Mailed to Parties: _______October 24, 2022___________ sej