Middletown Township BOE v. IH obo NJ SPDR Agency Ref 2023-35639ER | Case 02691-23 | 2023-03-30

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW ORDER EMERGENT RELIEF OAL DKT. NO. EDS 02691-23 AGENCY REF. NO. 2023-35639 MIDDLETOWN TOWNSHIP BOARD OF EDUCATION, Petitioner, v. I.H. ON BEHALF OF N.J., Respondent. Jared S. Schure, Esq., for petitioner (Methfessel & Werbel, attorneys) I.H., respondent, pro se 30BEFORE DEAN J. BUONO, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY Petitioner filed a due process petition and motion for emergent relief with the Office of Special Education (OSE) in the New Jersey Department of Educa tion (DOE). The contested ma tter was t ransferred to the Office of Ad ministrative Law (OAL), pursuant to N.J.A.C. 1:6A-12.1, where it was filed on March 28, 2023.

OAL DKT. NO. EDS 02691-23 2 The motion for emergent relief seeks an order that would place the student with a disability in an interim alternative placement on home instruction for not more than forty- five calendar days because it is dangerous for the student to be in his current placement, as the s tudent poses a danger to himself and others. The Board and the parent did not agree to the placement therefore t he request f or emergent relief was heard on March 29, 2023. At the hearing, none of the respondents appeare d. Only the petitioner gave argument. FACTUAL BACKGROUND Petitioner I.H. is the parent of N.J. who is a fourteen-year-old eigh th-grader who resides within the District and has been eligible and receiving special education and related services. He is presently eligible under the classification category of Specific Learning Disability. N.J. moved into the Distr ict from Ohio and enrolled in the District’s Thorne Middle School, on November 17, 2021, as a general education student. He began being cited for discipline issues as soon as N ovember 19, 2021. Due to academic concerns and behavior c oncerns, he was referred t o Thorne’s Child Study Team (“CST”) on March 11, 2022. The CST evaluated him and found that he was eligible for special education and related service s under the classifica tion category of Specific Learning Disability in the area s of math calculation, math problem solving, and written expression. An Individualized Education Plan (IEP) was proposed at an IEP meeting held on June 20, 2022; I.H. consented to its implementation. At the me eting, N.J.’s case manager stated that the District wanted its psychia trist to evaluate N.J. due to the emotional and anger issues he had been displaying in school. The District scheduled two appointments with the psychiatrist, and I.H. and N.J. skipped bo th of them without informing the District in advance. N.J. finished the 2021–2022 school year having failed all four of his major academic subjects, and having accrued forty-two absences, thirty- four tardies, and twenty-two incidents for in fractions including substance abuse, class

OAL DKT. NO. EDS 02691-23 3 disruption, and inappropriate behavior. This is set forth in the March 21, 2 023, case summary by case manager Frees, LDT-C, EXHIBIT A. N.J. currently attends the District’s Thorne Middle School, where he is plac ed in pull-out resource replacement courses for all major academic subjects and rece ives both group and individual counseling. See February 23, 2023, IEP, EXHIBIT B. N.J. finished the third marking period with a grade of 0 in American Sign Language, a grade of 25 in Language Arts, a grade of 66 in Pre -Algebra, a grade of 72 in Science, a grade of 71 in Social Studies, and a grade of 0 in Coding/Robotics. See progress report, third marking period, EXHIBIT C. During the first half of the 2022–2023 school year, N.J. accrued twenty-seven absences and fourteen tardies. See second marking period attendance report and report card, EXHIBIT D. N.J.’s poor academic performance and attendance are of a piece with his behavioral problems, which are so severe at this point that they necessitated the instant Petition for Due Process. Specifically, on Se ptember 20, 2022, N.J. took another student’s water bottle, sprayed the other student with it, sprayed the other student’s pants with it, followed the other student ou t of class and sprayed his backpack with it, t hen followed the other student into th e boy’s locker room, which N.J. did not have perm ission to enter, and dumped the water from the othe r student’s water bottle on the other student, and threw the other student’s water bottle at the other student. See discipline log, EXHIBIT E. On September 28, 2022, one of N.J.’s teachers instructed him to go to the main office because he was being disru ptive in class. In response, N.J. continuously repeated the words, “th ese nuts, these nuts, these nuts” in front of the entire class. Later that day, N.J . sho ved another student into his locker from behind , causing that student to fall into another student , and causing one of those students to have to go home due to an injured ear. On October 24, 2022, N.J. insulte d and made inappropriate comments towards several students in his advisory class. On November 4, 2022, N.J. arrived late to his sign language class. When he arrived, the other students had already begun taking a

OAL DKT. NO. EDS 02691-23 4 quiz. N.J. acted in a disruptive man ner during the administration of the quiz. When the teacher took his quiz away, he began jumping on the classroom’s radiator and tried to remove the m etal grates from the top. He began screaming that he was a “parkou r champion.” When his teacher told him t o go to the main office he responded, “I ’m not going, there is only 3 minutes left of class.” He th en told his teacher, “I don’t f***ing need ASL in m y life. This class f***ing sucks!” He then lef t the classroom, but never went to the main office as direct ed. That same day, N.J. spla shed water on a female peer as they were leaving the cafeteria. On November 17, 2022, N.J. repeatedly entered a class h e did not belong to and disturbed the students in it. On November 29, 2022, N.J. ask ed to leave his class and then never returned. He later admitted to cutting the class. On December 7, 2022, N.J. would not stop talking to his peers while the teacher was t rying to teach. When one of his peers told him to be quiet, he responded t o her by saying, “You shut up. You are annoying with your ugly yellow f***ing teeth.” On December 16, 2022, N.J. chased after t wo students while threatening to put water on them, d espite being repeatedly asked to st op. He was also cited for “constantly using inappropriate language towards his peers, ar ound teachers.” On January 3, 2023, N.J. disrupted his class by refusing to put his Chromebook away and, when asked to do so, raising th e volume on a video he was wat ching. He insulted a female peer when she walked into the class from the bathroom. He used foul language like “s***” and “f***” in class, then threatened that he would “r oast” his teacher, at which point N.J. had to be removed from the classroom. On January 6, 2023, N.J. slapped two peers in the crotch. When a staff member told him to report to the main office he responded, “F*** you, b****.” He also told a peer, “F*** you, you sound like a nasally b****” several times. On January 24, 2023, N.J. threw a piece of bread in the cafeteria, and it hit a teacher in the head. On February 1, 2023, N.J. sat in the back of his classroom tapping a pencil. When the teacher offere d to help him with his assignment, he responded that he would not do his assignment and that he didn’t “give a s***.” When the teacher asked if he

OAL DKT. NO. EDS 02691-23 5 wanted to go to the main office, he responded by saying, “ F*** this,” and proceeded to throw a book across the room, tip over a desk, and knock over a chair. On February 10, 2023, N.J. was running in a hallway. When a teacher told him to stop, N.J. responded, “Shut up.” Later, N.J. approached a m ale peer and pretended that he was going to shake his hand, and then proceeded to hit the peer in the groin. On February 22, 2023, N.J. was cited f or disruptive behavior, ignoring reprimands, “totally inappropriate behavior” towards a teacher, “constant c omments,” and “disruptive noises.” On February 23, 2023, N.J. refuse d to close his Chromebook despite having been directed multiple times by his teacher to do so. While on his Chromebook, N.J. access ed Instagram and five additional sites that he was not permitted to use. Id. On March 10, 2023, N.J. began screaming at a fe male peer, telling her that she was “ f***ing annoying” and that she c ould “go f*** herself.” He then stormed out of class. That same day, N.J. grabbed a peer’s neck with his two hands. At this time, it is the judgement of the school -based members of Thorn e Middle School’s IEP team that the District is presently unable to handle N.J.’s significant behavioral needs in h is current placement. On March 13, 2023 , an IEP meeting was held du ring which the school-based members of the IEP team recommended to I.H. th at N.J. be placed on home instruction via an IEP fo r up to forty-five days while the parties explore an appropriate out-of-district placement. IEP, EXHIBIT F. Despite N.J.’s manife st dangerousness and the risks he poses to the Thorne Middle School community, I.H. refused to cons ent to the implementation of the proposed IEP. I.H. also refused to consent to the relea se of N.J.’s student records to potential out-of-district placements. To protect its students and staff, the District had no recourse but to seek this Court’s intervention. Respondent Neither I.H. nor N.J. appeared for the hearing.

OAL DKT. NO. EDS 02691-23 6 LEGAL ANALYSIS AND CONCLUSION Due to the nature of this proceeding, it must be determined if petitioner is entitled to the request emergent relief. In as much, a party may only request emergent relief for the following reasons, in accordance with N.J.A.C. 6A:14-2.7(r)1: i. Issues involving a break in the delivery of services; ii. Issues involvi ng disciplinary action, incl uding manifestation determ inations and determinations of interim alternate education settings; iii. Issues conc erning p lacement pending outcome of due process proceedings; and iv. Issues involving graduation or participation in graduat ion ceremonies. As the presen t matter concerns the issu es of a break in services, discipline and placement pending the outcome of due process p roceedings, petitioner is cert ainly entitled to seek emergent relief. The New Jersey Supreme Court has set fort h a four -prong test for determ ining whether an applicant is entitled to emergent relief. Crowe v. DeGioia, 90 N.J. 126, 132- 34 (1982) (enumerating the factors later codified at N.J.A.C. 6A:14.2-7(s)1). The four factors (“the Factors”), include: 1. The petitioner will suffer irreparable harm if the requ ested relief if not granted; 2. The legal right underlying petitioner’s claim is settled; 3. The petitioner has a likelihoo d of prevailing on th e merits of the underlying claim; and 4. When the equities a nd interest s of the parties are balanced, the petitioner will suffer greater harm than the respondent will s uffer if the requ ested relief is not granted.

OAL DKT. NO. EDS 02691-23 7 The m oving party b ears the burden of proving each of the Crowe elements “clearly and convincingly.” Waste Mgmt. of N.J. v. Union County Util. Auth. , 399 N.J. Super. 508, 520 (App. Div. 2008). A review of the four factors is in order. Factor One. The petitioner will suffer irreparable har m if th e requested rel ief is not granted. The staff, students and N.J. are all at risk as N.J. continues to exhibit injurious be havior. The continued behaviors need to be addressed, and an IEP developed to address th em. Petitioner is required to maintain the safety of its stude nts and staff, and to ensure an atmosphere conduciv e to le arning for its students. N.J.’s continued att endance in school will greatly diminish petitioner’s abili ty to provid e an appropriate educational setting. Factor Two. The legal right underlying petit ioner’s claim is settled. Petitioner is responsible for maintaini ng a s afe sch ool for its st udents and s taff. N.J. A.C. 6A:14- 2.8(f) authorizes t he removal of a student wh en the student caused a serio us bodily injury. N.J. A.C. 18A:37-13 states in pertinent part “ . . . a safe and civil environment in school is ne cessary for students to le arn and achieve high a cademic standards; harassment, intimidation or bullying, like other disruptive or violent behaviors, is conduct that disru pts bot h a student’s ability to learn and a school’s ability to educate i ts students in a safe environment . . .” This is certainly relevant and applicable here. Factor T hree. Petitioner has a li kelihood of prevailing on the merits o f the underlying claim. Petitioner, as a matter of law, must address N.J.’s behavior and his disability in developing an appropriate IEP. The only avenue available is to evaluate N.J. and determine an appropriate placement. The safest alternative at the moment is home instruction. In this regard, petitioner is likely to prevail on the merits. Factor Fou r. When the equi ties and interests of the parties a re balanced, the petitioner will suffer greater harm than the respondents will suffer if the requested relief will not be granted. Here, both the petitioner and respondent will suffer irreparable harm

OAL DKT. NO. EDS 02691-23 8 if the requested relief is not granted because, if granted, N.J. will continue to receive an education via home ins truction pending evaluation. This is the least restrictive environment. He needs to ha ve evaluations do ne and a prop er placem ent ma de according to his needs. The petitioner, i f not granted, will be unable to ensure the safety of its students and staff, and the ability of its students, particularly the classmates of N.J., from receiving an appropriate education in a safe and civil environment. N.J.A.C. § 6A :14-2.7(n) provid es: “To remove a student with a disability when district board of education perso nnel maintain that it is dange rous for the student to be in the current placement and the parent and district board of education cannot agree to an appropriat e placement, the district board of education shall request an exped ited hearing. The administrati ve law judge may order a chang e in the pl acement of the student with a disability to an appropriate interim alternativ e placeme nt f or not more than 45 calendar days [. . .]” The OAL has previously granted emergent relief in similar circumstances. See Gloucester City Bd. of Educ. , OAL DKT. NO. E DS 0 9165-15 (2015), Wayne Twp. Bd. of Educ. v. G.G. and S.W. ex.rel. G .G., OAL DKT. NO. EDS 05519-17 (2017) , and Washington Twp. Bd. of Educ. v. H .M. ex.rel. , OAL DKT NO . EDS 08328-19 (2019). Based upon the foregoing, I CONCLUDE that petitioner’s request for emergent relief be GRANTED. ORDER It is hereby ORDERED that petitioner’s request for emergent relief is GRANTED. IT IS FURTHER ORDERED that N.J. be placed in the appropriate interim alternative education setting (IAES) of home instruction for forty-five calendar days because N.J.’s current placement is substantially likely t o result in in jury to N.J. or others. IT IS FURTHER ORDERED that the respondent is compelled to enable the District to obtain, releases, and/or exchange N.J.’s student records.

OAL DKT. NO. EDS 02691-23 9 This decision on appl ication for emerg ency relief shall remain in effect until the issuance of the decision on the merits in this matte r. The parties will be notified of the scheduled he aring dates. If the parent o r adult stud ent feels that thi s decision is not being fully i mplemented with r espect to program or services, this concern shoul d be communicated in writing to the Director, Office of Special Education. March 30, 2023 Date DEAN J. BUONO, ALJ Date Received at Agency Date Mailed to Parties: DJB/cb

OAL DKT. NO. EDS 02691-23 10 APPENDIX LIST OF MOVING PAPERS AND EXHIBITS For petitioner • Due Process Petition • Brief in Support of Application for Emergent Relief • Certification of Dr. Michele Tiedemann • Exhibits A through F For respondents None