UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

A.W.,Plaintiff,

vs.

THE JERSEY CITY PUBLIC SCHOOLS, NEWJERSEY DEPARTMENT OF EDUCATION,JEFFREY V. OSOWSKI, former Director,Division of Special Education, BARBARAGANTWERK, Director, Office of SpecialEducation Programs, SILVIA ELIAS, formerExecutive Director of Pupil Personnel Services,PRISCILLA PETROSKY, AssociateSuperintendent for Special Education, JOHNIWANOWSKI, MARY HEPBURN, JOANEDMISTON, DENISE BRAAK, MARYMacEACHERN, EDWARD FAUERBACH,Learning Disabilities Teacher-Consultants,NORMA CHRISOMALIS, GWENDOLYNJACKSON, LINDA COLON, RONNEBASSMAN, WILLIAM RONZITTI,ROXANNE JOHNSON, Supervisors of SpecialEducation, SHARNETTE GREEN, teacher,MELINDA ZANGRILLO, Coordinator ofCompliance, and JANE DOE AND JOHN DOE(1) - (5), all in their official and individualcapacities,

Defendants.

Civil Action No. 01-CV-00140 (JLL)

Hon. Jose L. Linares, U.S.D.J.

DOCUMENT ELECTRONICALLY FILED

PLAINTIFF’S BRIEF IN OPPOSITION TO STATE DEFENDANTS’ MOTION FOR SUMMARYJUDGMENT

Elizabeth Athos, Esq. (EA3320) Stephen M. Latimer, Esq. (SL7313)Education Law Center Loughlin & Latimer60 Park Place Suite 300 131 Main St. Suite 235Newark, NJ 07102 (201) 487-9797; fax (201) 487-8673(973)624-1815; fax (973)624-7339

Attorneys for PlaintiffOn the BriefElizabeth Athos, Esq.Stephen M. Latimer, Esq.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. THE STATE’S MOTION FOR SUMMARY JUDGMENT MUSTBE DENIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. There Are Genuine Issues as to Material Facts, andState Defendants Cannot Prevail as a Matter of Law . . . . . . . . . 2

1. The Facts Governing Plaintiff’s FAPE, Section 504,and State Law Claims Support Plaintiff’s Case,and State Defendants Cannot Prevail as a Matter of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. There are Genuine Issues of Material FactsGoverning Plaintiff’s CSPD Claims . . . . . . . . . . . . . . . . . 5

3. There are Genuine Issues of Material FactsGoverning State Defendants’ Handling of the December 1997 Complaint Investigation . . . . . . . . . . . . . 7

II. STATE DEFENDANTS EXHAUSTION ARGUMENT LACKSMERIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. PLAINTIFF’S CLAIMS ARE NOT TIME BARRED . . . . . . . . . . . . 11

A. Plaintiff’s Statute of Limitations Was Tolled While HeWas a Minor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Defendants’ Conduct Constituted a Continuing Violation . . . . 12

IV. PLAINTIFF HAS A PRIVATE CAUSE OF ACTION UNDERIDEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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V. STATE DEFENDANTS VIOLATED IDEA AND SECTION504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. The State Is Liable for JCPS’ Failure to Provide FAPE to A.W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. Intentional Conduct is not Required to Prove Violationsof Section 504 or IDEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C. Monetary Damages are Available Under IDEA . . . . . . . . . . . . 21

VI. PLAINTIFF IS ENTITLED TO BRING INDIVIDUALCAPACITY CLAIMS AGAINST DEFENDANTS GANTWERKAND ZANGRILLO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. Public Officials Can be Sued in Their IndividualCapacities Under Section 1983 For Violationsof IDEA and Section 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. Defendants Gantwerk and Zangrillo are Not Entitledto Qualified Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

1. Defendants Gantwerk and Zangrillo ViolatedPlaintiff’s Statutory Rights . . . . . . . . . . . . . . . . . . . . . . . 26

2. The Rights Defendants Gantwerk and ZangrilloViolated Were Clearly Established . . . . . . . . . . . . . . . . . 31

VII. PLAINTIFF IS ENTITLED TO BRING CLAIMSFOR DECLARATORY RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

VIII. THERE IS NO BASIS TO ABSTAIN FROM EXERCISING JURISDICTION OVER PLAINTIFF’S STATE CONSTITUTIONAL CLAIMS . . . . . . . . . . . . . . . . . . . . . . . 36

IX. THE DOCTRINES OF RES JUDICATA ANDCOLLATERAL ESTOPPEL DO NOT PROVIDE A BASISTO DISMISS PLAINTIFF’S CLAIM UNDER COUNT NINE . . . . 37

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X. PLAINTIFF’S NJLAD CLAIM SHOULD PROCEED TOTRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

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TABLE OF AUTHORITIES

FEDERAL CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) . . . . . . . . . . . . . . . . . . . . . . . . 2

Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . 2

Arizona v. California, 460 U.S. 605 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Barnes v. Gorman, 536 U.S. 181 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-22

Bennett v. Spear, 520 U.S. 154 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Beth V. v. Carroll, 87 F. 3d 80 (3d Cir. 1996) . . . . . . . . . . . . . . . . . . 14-15, 17, 27

Blessing v. Freestone, 520 U.S. 329 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Board of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176(1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Board of Regents v. Tomiano, 446 U.S. 478 (1980) . . . . . . . . . . . . . . . . . . . . . . . 11

Booth v. Churner, 532 U.S. 731 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Cameron v. Tomes, 990 F. 2d 14 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 38

Carter v. Univ. of Medicine and Dentistry of New Jersey, 838 F. Supp. 957 (D.N.J.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Celotex Corporation v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . 2

Chapman v. California Dep’t of Educ., 229 F. Supp. 2d 981 (N.D.Cal. 2002), rvs’don other grounds and remanded sub nom, Smiley v. California Dep’t of Educ., 45 Fed.Appx. 780 and 53 Fed Appx. 474 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 15

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Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984) . . . . . . . . . 38

Corey H. v. Board of Educ. of City of Chicago, 995 F. Supp. 900 (N.D.Ill. 1998)16

County of Westchester v. New York, 286 F. 3d 150 (2d Cir. 2002) . . . . . . . . . . 16

Courtney v. La Salle Univ., 124 F. 3d 499 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . 13

DeBoer v. Pennington, 206 F.3d 857 (9th Cir. 2000), remanded sub nom City ofBellingham v. DeBoer, 532 U.S. 992 (2001), rvs’d on other grounds, 287 F.3d 748 (9th

Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Doe v. Town of Framingham, 965 F. Supp. 226 (D. Mass. 1997) . . . . . . . . . . . . 23

F.P. v. Palmyra Board of Educ., 2 F. Supp. 2d 637 (D.N.J. 1998) . . . . . . . . . . . . 20

Flowers v. Martinez, 19 IDELR 898 (N.D. Cal. 1993) . . . . . . . . . . . . . . . . . . . . . . 9

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992) . . . . . . . . . . . . . . . . 21

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 13, 24

Gruenke v. Seip, 225 F. 3d 290 (3d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195 (3d Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Harlow v. Fitzgerald, 457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Hiser v. Franklin, 94 F. 3d 1287 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Inquiry of Arons, 16 EHLR 1028 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 28, 32-33

Jeffrey Y. v. St. Mary’s Area Sch. Dist., 967 F. Supp. 852 (W.D. Pa. 1997) . 11, 13

Kruelle v. New Castle County School Dist., 642 F.2d 687 (3d Cir. 1981) . . . 17, 33

Lucht v. Molalla River Sch. Dist., 225 F.3d 1023 (9th Cir. 2000) . . . . . . . . . . . . 10

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M.A. v. State-Operated Sch. Dist. of the City of Newark, 344 F. 3d 335 (3d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Mallett v. Wisconsin Div. of Voc. Rehab., 130 F. 3d 1245 (7th Cir. 1997) . . . . . 19

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Monahan v. Nebraska, 687 F. 2d 1164 (8th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 20

Monroe v. Pape, 365 U.S. 167 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003) . . . . . . . . . . . . . . . 22

Oberti v. Board of Educ., 801 F. Supp. 1392 (D.N.J. 1992), aff’d 995 F. 2d 1204 (3dCir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

P.N. v. Greco, 282 F. Supp. 2d 221 (D.N.J. 2003) . . . . . . . . . . . . . . . . . . 15, 35-36

Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1 (1981) . . . . . . . . . . . . 13

Polk v. Central Susquehanna Intermediate Unit 16, 853 F. 2d 171 (3d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 30, 33

Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F. 3d 548 (3d Cir. 2002) . . . . . . . . 35

Ridgewood Board of Educ. v. N.E., 172 F. 3d 238 (3d Cir. 1999) . . . . . . 12, 18-20,23, 26, 30, 33

Rosetti v. Shalala, 12 F. 3d 1216 (3d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 35

S.C. v. Deptford Twp. Board of Educ., 213 F. Supp. 2d 452 (D.N.J. 2002) . . . . 15

Saucier v. Katz, 533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 31

Sellers v. School Board of Manassas, 141 F. 3d 524 (4th Cir. 1998), cert. denied 525U.S. 871 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23

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Smith v. Robinson, 468 U.S. 992 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Smith v. Wade, 461 U.S. 30 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Suter v. Artist M., 503 U.S. 347 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Upper Valley Ass’n for Handicapped Citizens v. Blue Mountain Union Sch. Dist. No.21, 973 F. Supp. 429 (D. Vt. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Vinson v. Thomas, 288 F. 3d 1145 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . 23

W.B. v. Matula, 67 F. 3d 484 (3d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 10, 20-25

Weixel v. New York City Board of Educ., 287 F. 3d 138 (2d Cir. 2002) . . . . . . 20

Wilson v. Garcia, 471 U.S. 261 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Younger v. Harris, 401 U.S. 37 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

STATE CASES

Abbott v. Burke, 153 N.J. 480, 710 A.2d 450 (N.J. 1998) . . . . . . . . . . . . . . . . . . 36

Abbott v. Burke, 177 N.J. 578, 832 A. 2d 891 (N.J. 2003) . . . . . . . . . . . . . . . . . . 36

Garvey v. Township of Wall, 303 N.J. Super. 93 (App. Div. 1997) . . . . . . . . . . . 38

Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 606 A.2d 1093 (N.J. 1992) . 12

Hall v. St. Joseph’s Hosp., 343 N.J. Super. 88 (App. Div. 2001) . . . . . . . . . . . 39

Lascari v. Board of Educ. of Ramapo Indian Hills Regional High Sch. Dist., 116 N.J.30, 560 A. 2d 1180 (N.J. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Parisi v. North Bergen Mun. Port Auth., 105 N.J. 25 (1987) . . . . . . . . . . . . . . . . 38

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Robinson v. Cahill, 62 N.J. 473 (1973), cert. denied, 414 U.S. 976 . . . . . . . . . . . 18

FEDERAL STATUTES

20 U.S.C. § 1400(d)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

20 U.S.C. § 1401(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

20 U.S.C. § 1401(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

20 U.S.C. § 1401(25) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28-29

20 U.S.C. § 1401(26)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28

20 U.S.C. § 1401(a)(15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

20 U.S.C. § 1401(d)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

20 U.S.C. § 1412(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 33

20 U.S.C. § 1412(a)(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

20 U.S.C. § 1414(b)(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28

20 U.S.C. § 1414(b)(3)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

20 U.S.C. § 1414(d)(1)(A)(iii)(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29

20 U.S.C. § 1415(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

20 U.S.C. § 1415(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

20 U.S.C. § 1453(b)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

20 U.S.C. § 1453(c)(3)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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20 U.S.C. § 1453(c)(3)(D)(vii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

STATE STATUTES

N.J.S.A. 2A:14-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

N.J.S.A. 2A:14-21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

N.J.S.A. 18A:46-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

N.J.S.A. 18A:46-15(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

N.J.S.A. 59:8-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

FEDERAL REGULATIONS

34 C.F.R. § 104.3(l)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

34 C.F.R. § 300.5 (b)(9) (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

34 C.F.R. § 300.135 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

34 C.F.R. §§ 300.380-381 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

34 C.F.R. §§ 300.380-383 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

34 C.F.R. § 300.660-661 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

34 C.F.R § 300.660(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

34 C.F.R. § 300.661(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 32

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MISCELLANEOUS

Fed R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Local Civil Rule 7.1(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1 In lieu of a Statement of Facts, Plaintiff relies on his L. Civ. R. 56.1 Statementof Material Facts.

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PRELIMINARY STATEMENT

A.W. sues to remedy the systemic failures of the New Jersey Department of

Education (“NJDOE” or “State”) and its named officials (collectively, “State

Defendants” or “Defendants”) to fulfill their responsibility to ensure that A.W. would

learn to read while receiving special education and related services in the public

schools of the State.

The credible evidence is that the State chose for many years not to recognize the

disabling condition of dyslexia in its regulations; failed to acquire and disseminate

relevant research and best practices on the remediation of dyslexia as required by

federal law; and failed to ensure the availability of appropriate programs and qualified

personnel in New Jersey to meet the needs of students such as A.W. As important, the

State and its officials, in responding to a December 1997 complaint alleging that A.W.

had unidentified and untreated dyslexia, provided no relief to A.W., when faced with

evidence that this then almost seventeen year old student was functionally illiterate

and suffering from frustration, embarrassment, anxiety, and depressive feelings

resulting from his inability to read. 1

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LEGAL ARGUMENT

A. STATE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT MUST BEDENIED

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil

Procedure only upon: 1) “proper showings of the lack of a genuine, triable issue of

material fact,” Celotex Corporation v. Catrett, 477 U.S. 317, 327 (1986); and 2)

entitlement of the moving party to judgment “as a matter of law,” Fed R. Civ. P. 56(c).

Since neither condition is met in this case, State Defendants’ summary judgment

motion must fail.

It is well settled that, in deciding a motion for summary judgment, a court must

view the facts in the light most favorable to the opposing party, drawing all justifiable

inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159 (1970);

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). To survive a defendant’s motion for summary judgment, a plaintiff “need

only present evidence from which a jury might return a verdict in his favor.”

Anderson, 477 U.S. at 257.

A. There Are Genuine Issues as to Material Facts, and State DefendantsCannot Prevail as a Matter of Law

Plaintiff has three categories of claims against the State Defendants: 1) claims

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brought against NJDOE and its employees in their official capacity for violations of

the free appropriate public education (“FAPE”) provision of the Individuals with

Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act (“Section

504"), the thorough and efficient education clause of the New Jersey Constitution, and

the New Jersey Law Against Discrimination (“NJLAD”) (Counts I, IV, IX, and X);

2) claims brought against NJDOE and its employees in their official capacity for

violations of the comprehensive system of personnel development (“CSPD)

provisions of IDEA (Count II); and 3) claims arising from State Defendants’ handling

of the December 1997 complaint investigation request made on behalf of A.W. and

other students brought against Defendants Gantwerk and Zangrillo in their individual

capacity (Count VII) and against NJDOE (Count I).

1. The Facts Governing Plaintiff’s FAPE, Section 504, and State LawClaims Support Plaintiff’s Case, and State Defendants CannotPrevail as a Matter of Law

Plaintiff’s first set of claims pertains to the adequacy of educational services he

received while he was a student of JCPS from 1988 until May 2000, and there is no

dispute about the underlying facts or about JCPS’ liability under these claims.

Notably, State Defendants have produced no evidence contradicting the plethora of

evidence demonstrating that A.W. was denied a legally adequate education while a

student of JCPS. State Defendants merely contend that “no reasonable fact finder

2 State Defendants’ arguments regarding Plaintiff’s claims under Section 504and state law are set forth in Points V, VIII, IX, and X of their brief and are respondedto in corresponding sections of Plaintiff’s brief.

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could conclude that the State acquiesced in JCPS’s alleged failure to provide A.W.

with FAPE.”2

As set forth fully in Point V.A., infra, NJDOE’s liability for the denial of FAPE

to A.W. can be established as a matter of law, or alternatively, can be found by a

reasonable jury based on material facts in dispute. For example, a reasonable jury can

find that NJDOE’s failure to adopt state regulations incorporating the disabling

condition of dyslexia until June 2000 was responsible for JCPS’ failure to diagnose

A.W.’s dyslexia. Certification of Elizabeth Athos (“Athos Cert.”) Ex. A; Transcript

of December 11, 2003 Deposition of Barbara Gantwerk (“Gantwerk Tr.”) 55:2 –

56:15; Transcript of August 7, 2003 Deposition of Denise Braak (“Braak Tr.”) 42:20

– 43:9; Transcript of August 20, 2003 Deposition of Joan Quirolo (formerly

Edmiston) (“Quirolo Tr.”) 30:17 – 31:15; Transcript of August 7, 2003 Deposition of

Mary Hepburn (“Hepburn Tr.”) 56:14 – 56:23. A reasonable jury can also find that

NJDOE’s approval of JCPS’ 1996-1999 special education plan emphasizing whole

language instruction contributed to the inappropriate programming received by A.W.

Athos Cert. Ex. Q. In addition, contrary to State Defendants’ position that they did

all they were required to in conducting the December 1997 complaint investigation

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related to A.W.’s case, a reasonable jury can find that NJDOE denied FAPE to A.W.

through the handling of that investigation, for all the reasons set forth in Point VI.B.,

infra.

2. There are Genuine Issues of Material Facts Governing Plaintiff’sCSPD Claims

The facts State Defendants rely on in their L.Civ. R. 56.1 Statement to defend

against Plaintiff’s CSPD claims do not contradict the facts set forth by Plaintiff in

support of his claims. State Defendants assert that NJDOE annually conducts “several

training sessions related to special education, including reading disabilities,” ¶ 56, that

the “goal” of the State’s CPSD is to ensure a sufficient number of qualified staff, ¶ 57,

that “[a]s part of the CSPD,” the State “monitors compliance CSPD requirements,”and

“conducted a needs assessment” of “professional development needs, priorities and

preferences,” ¶ 58.

These facts alone, assuming they are true, do not negate Plaintiff’s allegations

that State Defendants have violated IDEA’s CSPD requirements. IDEA requires

states to implement a CSPD “designed to ensure an adequate supply of qualified”

staff, 20 U.S.C. § 1412(a)(14), including a description, in detail, as to how the State

will ensure that personnel throughout the state “have the skills and knowledge

necessary to meet the needs of children with disabilities,” 20 U.S.C. §1453(c)(3)(D).

See also 34 C.F.R. §§ 300.135, 380-381 (1999); 34 C.F.R. §§ 300.380-383 (1992).

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As part of its CSPD obligation, the State is required to analyze state and local needs

for the professional development of personnel to serve children with disabilities. 20

U.S.C. § 1453(b)(2)(B). The State must also acquire and disseminate significant

knowledge from educational research and other sources, and promising practices,

materials, and technology. 20 U.S.C. §1453(c)(3)(D)(vii). The relevant facts material

to A.W.’s CSPD claim are those demonstrating that State Defendants have not: 1)

ensured that all personnel who work with students with dyslexia have the skills and

knowledge necessary to meet those students’ needs; or 2) acquired and disseminated

to teachers, administrators, and other relevant staff, significant knowledge derived

from educational research about reading remediation, as well as information about

how the State will adopt promising practices, materials, and technology for the

remediation of dyslexia and other reading disabilities.

A jury can reasonably find that State Defendants have not ensured that all

personnel who work with students with dyslexia have the skills and knowledge

necessary to meet those students’ needs based on the fact that NJDOE has no way of

knowing what training teachers have in the area of remediating reading disabilities,

Gantwerk Tr. 61:20 – 62:21, and whether sufficient programs exist statewide to

address the needs of students with dyslexia and other reading disabilities, Gantwerk

3 NJDOE did not approve JCPS’ procedures for ensuring a CSPD within thedistrict until May 2003. Athos Cert., Ex. X.

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Tr. 70:13 – 71:7; Athos Cert. Ex. S #8, Ex. T #16.3

A jury can also reasonably find that State Defendants have not acquired and

disseminated significant knowledge derived from educational research about reading

remediation based on facts that include the following: 1) NJDOE did not undertake

any initiatives in the area of improving outcomes for students with reading disabilities

during the relevant period, Gantwerk Tr. 13:6 – 13:15, 72:16 – 72:25; 2) NJDOE has

not systematically collected research on reading programs to date, Gantwerk Tr. 19:12

– 19:14; 3) NJDOE relies on its four LRCs for the dissemination of information on the

remediation of reading disabilities, but leaves the acquisition and dissemination of

material up to each LRC, Gantwerk Cert. ¶ 27, Gantwerk Tr. 19:18 – 21:1; and 4)

during the relevant period, there were virtually no materials in the area of reading

acquired and available through the LRCs, and the limited training opportunities

available focused on whole language training. Athos Cert. Ex. Z.

Based on all of these facts, a jury can reasonably conclude that State Defendants

failed to meet their CSPD obligation under IDEA during 1988-2000.

3. There are Genuine Issues of Material Facts Governing State Defendants’ Handling of the December 1997 Complaint Investigation

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State Defendants allege that Defendants Gantwerk and Zangrillo had no specific

knowledge of A.W.’s situation prior to December 10, 1997. Plaintiff does not dispute

this fact and does not seek to hold Gantwerk and Zangrillo liable, in their individual

capacity, for failures that occurred prior to December 10, 1997. However, Plaintiff

does dispute facts material to the liability of Gantwerk, Zangrillo, and NJDOE as of

December 10, 1997.

Those facts material to Plaintiff’s claims against NJDOE, Gantwerk, and

Zangrillo arising from the handling of the December 1997 complaint investigation are:

1) the failure to address each allegation in the complaint, including the failure to

address the district’s refusal to diagnose A.W.’s dyslexia, Zangrillo Cert. Ex. C,

Zangrillo Tr. 36:19 – 36:25; 2) the deletion from the state’s report of the material fact

that the publisher of the Houghton Mifflin reading series used by JCPS did not

consider those materials adaptable for students with reading disabilities, Gantwerk Tr.

34:23 – 35:24, Zangrillo Tr. 67:23 – 68:17; and 3) the denial of relief to A.W. as a

result of the complaint investigation, Gantwerk Tr. 47:22 – 48: 16, Zangrillo Tr. 65:3

– 65:9. A detailed discussion of these facts and their legal relevance is set forth in

Point VI.B., infra.

Notably, a federal district court in California ruled that evidence of an educational

agency’s failure to diagnose a student’s dyslexia presents a triable fact warranting

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denial of a motion for summary judgment. Flowers v. Martinez, 19 IDELR 898 (N.D.

Cal. 1993) (appended hereto). As stated by the court: “There is at least a triable issue

of fact arising out of the District’s refusal [to diagnose dyslexia].... Without an

appropriate diagnosis of Kristen’s special needs, there could be no formulation of an

IEP that would address those special needs.” Id.

For these reasons, as well as the reasons set forth in Point VI.B. infra, State

Defendants are not entitled to summary judgment on the issue of their handling of the

December 1997 complaint investigation.

II. STATE DEFENDANTS’ EXHAUSTION ARGUMENT LACKS MERIT

With great audacity, State Defendants ask this Court to redetermine their

argument that A.W.’s Amended Complaint should be dismissed on the grounds of

failure to exhaust administrative remedies. In this Court’s opinion dated May 1, 2002,

Judge Bassler explicitly rejected that argument and denied the same motion made by

State Defendants. See, e.g., Arizona v. California, 460 U.S. 605, 619 (1983) (“a

fundamental precept of common-law adjudication is that an issue once determined by

a competent court is conclusive”) (citations omitted).

If State Defendants had a legitimate basis for requesting reconsideration of the

Court’s decision, they were required to move for reconsideration within 10 days of

this Court’s 2002 ruling. Local Civil Rule 7.1(g). They failed to do so.

4 Alternatively, Plaintiff in fact exhausted administrative remedies through useof IDEA’s complaint resolution procedure (“CRP”). Courts have recognized thatutilizing the CRP procedures under 34 C.F.R. § 300.660-661 satisfies IDEA’sexhaustion requirement. See, e.g., Lucht v. Molalla River Sch. Dist., 225 F.3d 1023,1025 (9th Cir. 2000) (recognizing that the CRP and due process hearing procedures are“simply alternative ... means of addressing a[n] [IDEA] complaint”); Upper ValleyAss’n for Handicapped Citizens v. Blue Mountain Union Sch. Dist. No. 21, 973 F.Supp. 429, 432, 436 (D. Vt. 1997) (same).

5 The United States Supreme Court ruling in Booth v. Churner, 532 U.S. 731(2001), cited by State Defendants, SDb9, does not undermine Matula in any way and

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Moreover, State Defendants’ contention that “the court did not consider the fact

that... A.W. had a viable administrative remedy available....” SDb at 7, fn. *, is belied

by the Court’s specific finding that the use of an administrative hearing would be

futile “[b]ecause an administrative body could not redress Plaintiff’s alleged injuries

or punish Defendants’ alleged past wrongs....”4

In addition, State Defendants do not cite to new evidence or new controlling law

that would warrant redetermination of this Court’s exhaustion ruling. Instead, State

Defendants’ disagreement is with the controlling law of the Third Circuit, W.B. v.

Matula, 67 F. 3d 484 (3d Cir. 1994), which clearly excused exhaustion under IDEA

when the administrative tribunal is not authorized to grant the relief sought. Id. at

496. The opportunity for State Defendants to raise its argument based on law in other

circuits is on appeal at the end of this case. Until then, Matula must govern the

outcome of this issue, making State Defendants’ argument completely meritless.5

is certainly not controlling. Booth interpreted the exhaustion requirements of thePrison Litigation Reform Act (“PLRA”), not IDEA, and relied on a statutory changespecific to PLRA to find that Congress mandated exhaustion under that statute,regardless of the relief obtainable through its administrative procedures. 532 U.S. at740-41. Notably, the Court distinguished “traditional doctrines of administrativeexhaustion,” and limited its holding to the statute before it. Id. at 741 n.6.

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III. PLAINTIFF’S CLAIMS ARE NOT TIME BARRED

After withdrawing their 2001 motion to dismiss on statute of limitations grounds,

State Defendants once again contend that Plaintiff’s IDEA claims are time-barred.

SDb11. This argument is flawed for two reasons: (1) Defendants overlooked the fact

that Plaintiff’s statute of limitations was tolled until he reached the age of majority;

and (2) Defendants’ conduct constituted a continuing violation, an equitable exception

to the statute of limitations.

A. Plaintiff’s Statute of Limitations Was Tolled While He Was a Minor

Whenever a federal statute, such as IDEA, has no statute of limitations of its own,

federal courts must borrow the statute of limitations of the most analogous state cause

of action. Wilson v. Garcia, 471 U.S. 261-266-67 (1985). In addition, a federal court

is obligated to adopt the applicable state tolling statutes. Board of Regents v.

Tomiano, 446 U.S. 478, 484 (1980). See also Jeffrey Y. v. St. Mary’s Area Sch. Dist.,

967 F. Supp. 852, 855 (W.D. Pa. 1997) (holding that Pennsylvania tolling statute for

minors should be applied to state’s statute of limitations for IDEA claims).

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The applicable statute of limitations for IDEA claims in New Jersey is two years,

whether based on the state’s personal injury statute, N.J.S.A. 2A:14-2, or on New

Jersey’s Tort Claims Act, N.J.S.A. 59:8-8. Ridgewood Board of Educ. v. N.E., 172

F. 3d 238, 251 (3d Cir. 1999). Under both state statutes, the limitations period is

tolled until a minor reaches the age of eighteen. N.J.S.A. 2A:14-21; N.J.S.A. 59:8-8.

See also Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 606 A.2d 1093 (N.J.

1992); Carter v. Univ. of Medicine and Dentistry of New Jersey, 838 F. Supp. 957

(D.N.J. 1993).

Thus, under New Jersey’s applicable statutory tolling provisions, Plaintiff’s

statute of limitations did not begin to run until January 16, 1999, when he turned

eighteen. N.J.S.A. 2A:14-21; N.J.S.A. 59:8-8. Since the filing of Plaintiff’s

Complaint on January 10, 2001 was within two years of his eighteenth birthday, his

claims are not time-barred.

B. Defendants’ Conduct Constituted a Continuing Violation

Plaintiff’s claims are also not time-barred because Defendants’ conduct

constituted a continuing violation. Plaintiff was continuously denied FAPE from 1988

until May 2000. State Defendants’ failure to ensure that A.W. received an appropriate

education from 1988 until May 2000 was an ongoing, continuing practice that gives

rise to the continuing violation doctrine, an equitable exception to the statute of

6 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002); Blessing v. Freestone, 520U.S. 329 (1997); Suter v. Artist M., 503 U.S. 347 (1992); Pennhurst State Sch. andHosp. v. Halderman, 451 U.S. 1 (1981).

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limitations. See Courtney v. La Salle Univ., 124 F. 3d 499, 505 (3d Cir. 1997)

(holding that “in the case of a continuing unlawful practice, every day that the practice

continues is a fresh wrong for purposes of the statute of limitations....”). Denial of

FAPE under IDEA over a period of time constitutes a continuing violation under this

doctrine. Jeffrey Y., supra, 967 F. Supp. at 855-56 (applying continuing violation

doctrine to IDEA claims).

Under the continuing violation doctrine, the statute of limitations did not begin

to run until Defendants’ illegal activity ended in May 2000. Plaintiff’s claims were

thus filed well within the statutory period.

IV. PLAINTIFF HAS A PRIVATE CAUSE OF ACTION UNDER IDEA

State Defendants suggest that this Court should adopt the analysis of the Supreme

Court in its Gonzaga/ Blessing/ Suter/ Pennhurst decisions6 to find that Plaintiff has

no private cause of action under IDEA. SDb12-16. Each of those decisions involved

a determination as to whether a federal statute which lacks provision for an express

private right of action can be found to contain an implied private right of action and/or

is enforceable under Section 1983. In stark contrast to the statutes in those cases,

IDEA contains an express private right of action. See, e.g., Beth V. v. Carroll, 87 F.

7 State Defendants’ erroneous claim that the private right of action under IDEAdoes not cover lawsuits for damages is addressed in Point V.C., infra.

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3d 80, 88 (3d Cir. 1996). The Gonzaga/ Blessing/ Suter/ Pennhurst analysis urged by

State Defendants is thus wholly irrelevant to this case and cannot be applied.

In considering the existence of an express private right of action under IDEA, the

Third Circuit in Beth V. found that “[t]he express language of IDEA gives disabled

children and their parents substantive and procedural rights as well as the right to seek

judicial enforcement of those rights in a federal or state court.” 87 F. 3d at 85.

Further, the Third Circuit ruled that the scope of the express right of action was broad,

encompassing “any matter relating to” identification, evaluation, or classification of

a student under IDEA, or the provision of FAPE to a student. Id. at 86. Noting that

its holding is “consistent with Congress’ view that private suits are integral to

enforcement of IDEA,” the Third Circuit approved a lawsuit by parents against the

Pennsylvania Department of Education for failure to investigate and timely resolve

IDEA complaints. Id. at 88.

Incredibly, State Defendants acknowledge that Section 1415 of IDEA allows for

private suits,7 SDb15, but imply that Plaintiff relies on an IDEA provision other than

Section 1415 as the basis for his private cause of action – without saying what that

provision is. In fact, the ruling in Beth V. makes clear that Section 1415, which

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authorizes any party aggrieved by administrative findings and decisions to file a

complaint in district court about any matter relating to identification, classification,

evaluation or the provision of FAPE, applies to even those parties who have not

exhausted administrative remedies. 87 F. 3d at 86, 88-89.

All of Plaintiff’s claims against State Defendants under IDEA relate to his

identification, evaluation, and classification and to the provision of FAPE to him, and

therefore fall within IDEA’s express private right of action. There is no doubt that

even Plaintiff’s claim that State Defendants’ failure to comply with IDEA’s CSPD

requirement denied him FAPE falls within IDEA’s broad private right of action. See

P.N. v. Greco, 282 F. Supp. 2d 221, 245 (D.N.J. 2003) (holding student has private

right of action to enforce IDEA’s confidentiality requirements); S.C. v. Deptford Twp.

Board of Educ., 213 F. Supp. 2d 452, 459 (D.N.J. 2002) ( holding local school district

has express right of action to bring claims against State defendants for resolution of

dispute over who will pay cost of providing FAPE to classified child); Chapman v.

California Dep’t of Educ., 229 F. Supp. 2d 981, 985-86 (N.D.Cal. 2002), rvs’d on

other grounds and remanded sub nom Smiley v. California Dep’t of Educ., 45 Fed.

Appx. 780 and 53 Fed Appx. 474 (9th Cir. 2002) (citing Beth V. in holding that IDEA

provides private right of action for students with disabilities to challenge

8 The case cited by State Defendants, SDb15, County of Westchester v. NewYork, 286 F. 3d 150 (2d Cir. 2002) is distinguishable because it did not involve theFAPE claims of aggrieved students, but rather addressed solely whether county“intermediaries” could bring suit against the State to enforce its compliance withIDEA. 286 F. 3d at 152. The court in that case recognized that “Congress expresslyprovided a private right of action in favor of certain groups,” such as students likePlaintiff. Id.

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administration of statewide assessment system).8 See also Corey H. v. Board of Educ.

of City of Chicago, 995 F. Supp. 900, 909, 910-911 (N.D.Ill. 1998) (grounding state

department of education’s liability under IDEA, in part, on its failure to ensure that

teachers are properly trained).

Consequently, because IDEA provides an express private right of action for

exactly the kind of violations alleged by Plaintiff, he must be allowed to proceed with

his IDEA claims.

V. STATE DEFENDANTS VIOLATED IDEA AND SECTION 504

A. The State Is Liable for JCPS’ Failure to Provide FAPE to A.W.

Since the 1975 enactment of IDEA’s predecessor statute, Congress has mandated

a framework for the delivery of educational services to students with disabilities,

which guarantees their right to receive FAPE, tailored to their unique needs. To

effectuate its mandate that all children with disabilities have FAPE available to them,

Congress placed the ultimate responsibility of compliance with federal requirements

9 In New Jersey, the SEA is NJDOE.

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on the state educational agency (“SEA”).9 Beth V., 87 F. 3d at 82.

State Defendants argue that there is no state liability under IDEA for denials of

FAPE without direct involvement and responsibility of the State. SDb17-18. This

position directly ignores the longstanding rulings of the Third Circuit to the contrary.

In Kruelle v. New Castle County School Dist., 642 F.2d 687 (3d Cir. 1981), the

court recognized that the State has “primary responsibility” for ensuring FAPE to

students under IDEA, and held the State directly responsible for insuring the proper

evaluation of an individual student’s needs and implementation of an appropriate IEP,

despite the State’s prior lack of involvement in the particular student’s case and its

contention that it functioned solely as a supervisory agency. 642 F. 2d at 690, 696-

697. In Kruelle, the parents sought and obtained an order requiring the State to

provide a full-time residential program for their son. Strikingly, State Defendants’

argument does not address the Kruelle decision at all.

The Third Circuit recently reaffirmed Kruelle’s holding that “the State has the

primary responsibility under the IDEA to provide a free appropriate public education

and to ensure compliance with the requirements of the Act.” M.A. v. State-Operated

Sch. Dist. of the City of Newark, 344 F. 3d 335 (3d Cir. 2003). Based on this primary

responsibility, the court rejected the State’s argument that it was not a proper party to

10 The Third Circuit’s interpretation of state responsibility under IDEA isconsistent with New Jersey law assigning overall responsibility for public educationto the State. The Commissioner and State Board of Education have long beenrecognized as having an “affirmative obligation” and “ultimate responsibility” forensuring a thorough and efficient education to the children of New Jersey. Robinsonv. Cahill, 62 N.J. 473, 508-09, 509 n.9 (1973), cert. denied, 414 U.S. 976. Statespecial education law also assigns overall responsibility to the State (and would be inviolation of IDEA if it did not). See, e.g., N.J.S.A. 18A:46-2 (“[t]he Commissioner[of Education] shall be responsible for ... the general administration of specialeducation services in the public schools of this State”); N.J.S.A. 18A:46-15(b), (c)(requiring Commissioner to continually review the operation of special educationprograms and to take “such steps ... as may seem necessary” to ensure that studentswith disabilities receive satisfactory programs).

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a preliminary injunction compelling them to continue providing IEPs to students in

the Newark schools. 344 F. 3d at 351.10

Alternatively, even if the State were to be held liable only upon A.W.’s showing

that the State was “directly involved and responsible for the alleged denial of FAPE,”

SDb18, the State is still not entitled to summary judgment. As set forth in Point I.A.1,

supra, there are material issues of fact supporting NJDOE’s direct involvement in, and

responsibility for, the denial of FAPE to A.W.

Thus, State Defendants are not entitled to summary judgment on this basis.

B. Intentional Conduct is not Required to Prove Violations of Section 504or IDEA

State Defendants have correctly cited the four criteria from Ridgewood Board of

Educ. v. N.E., 172 F. 3d 238, 253 (3d Cir. 1999), required to establish a violation of

11 State Defendants err in relying on Mallett v. Wisconsin Div. of Voc. Rehab.,130 F. 3d 1245 (7th Cir. 1997), to argue that A.W. is not “otherwise qualified.”Mallett concerned eligibility for participation in vocational rehabilitation services,which is available only to certain qualified persons with disabilities, not eligibility forparticipation in a public school program, which is available to all age-eligibleresidents.

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Section 504. SDb18. However, State Defendants are wrong as a matter of law in

arguing that Plaintiff: 1) is not “otherwise qualified” under Section 504; and 2) must

prove intentional discrimination. SDb19-20.

The federal regulations governing Section 504 implementation in public schools

provide that a student is “otherwise qualified” if he or she is of the age during which

children without disabilities are required to be educated or of the age during which it

is mandatory to educate a student with a disability. 34 C.F.R. §104.3(l)(2); see also

Oberti v. Board of Educ., 801 F. Supp. 1392, 1405 (D.N.J. 1992), aff’d 995 F. 2d

1204 (3d Cir. 1993). It is undisputed that A.W. met the age requirements to be

eligible for a free public education at all relevant times, and he, therefore, is

“otherwise qualified” under Section 504. Id.11

Moreover, no proof of intentional discrimination is required by the Third Circuit

to prevail on either a Section 504 claim or an IDEA claim. Ridgewood, 172 F. 3d at

253. While State Defendants cite Barnes v. Gorman, 536 U.S. 181 (2002) for the

proposition that intentional conduct is required to prove a violation of Spending

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Clause legislation, SDb19, the issue before the Court in Barnes was the availability

of punitive damages. The statement in Barnes that a federal fund recipient may be

held liable for intentional conduct is dicta, and is given as an example of a standard

on which liability for damages may be based. 536 U.S. at 186-87.

Courts have often held that a failure to provide FAPE constitutes discrimination

in violation of Section 504. See, e.g., F.P. v. Palmyra Board of Educ., 2 F. Supp. 2d

637, 642 (D.N.J. 1998) and citations therein. See also Weixel v. New York City

Board of Educ., 287 F. 3d 138 (2d Cir. 2002) (allegation of refusal to reasonably

accommodate disability by providing meaningful public education sufficient to sustain

disability discrimination claims).

While some courts have required “something more,” such as “bad faith or gross

misjudgment” to establish a violation of Section 504 on behalf of a student with a

disability, Sellers v. School Board of Manassas, 141 F. 3d 524, 529 (4th Cir. 1998), cert. denied

525 U.S. 871 (1998) (quoting Monahan v. Nebraska, 687 F. 2d 1164, 1170 (8th Cir. 1982)), that has never

been the requirement within this Circuit. Instead, the Third Circuit has found “few

differences, if any, between IDEA’s affirmative duty and § 504's negative

prohibition,” Matula, 67 F. 3d at 493, and has held that the failure to provide FAPE

in and of itself “could violate § 504,” Ridgewood, 172 F. 3d at 253.

C. Monetary Damages are Available Under IDEA

12 While State Defendants cite to a number of courts in other jurisdictionswhich have held that damages are not available under IDEA, all but one of theserulings predate the ruling in Barnes. In the one post-Barnes case cited by State

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In examining the availability of monetary relief for violations of IDEA, the Third

Circuit “discern[ed] nothing in the text or history suggesting that relief under IDEA

is limited in any way,” and nothing to rebut the “traditional presumption in favor of

all appropriate relief.” Matula, 67 F. 3d at 494 (quoting Franklin v. Gwinnett County

Pub. Sch., 503 U.S. 60, 69 (1992). Although the plaintiff in Matula sought damages

only under Section 1983 based on violations of IDEA, not directly under IDEA itself,

the court’s analysis clearly supports the availability of damages directly under IDEA.

Further, in Barnes v. Gorman, supra, the Supreme Court recently revisited the

issue of the type of liability to which a recipient of federal funds, under a statute such

as IDEA, is on notice. The Court reaffirmed that the recipient is “on notice that it is

subject not only to those remedies explicitly provided in the relevant legislation, but

also to those remedies traditionally available in suits for breach of contract,” including

“suit for compensatory damages.” 536 U.S. at 187. The Court noted:

When a federal-funds recipient violates conditions of Spending Clauselegislation, the wrong done is the failure to provide what the contractualobligation requires; and that wrong is “made good” when the recipientcompensates the Federal Government or a third-party beneficiary (as in thiscase) for the loss caused by that failure.

Id. at 189 (emphasis in original).12 Together, Barnes and Matula mandate the

Defendants – Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003) – the FirstCircuit relies on two of its own earlier decisions, both of which pre-date Barnes, id.at 124, and does not discuss or apply Barnes in reaching its holding under IDEA.

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availability of money damages under IDEA.

Plaintiff concedes that he is not entitled to punitive damages from the State.

However, Plaintiff is entitled to punitive damages from Defendants Gantwerk and

Zangrillo in their individual capacity upon a showing that their conduct involved

“reckless or callous indifference to the federally protected rights of others.” Smith v.

Wade, 461 U.S. 30, 56 (1983). As described in Point VI.B., infra, the acts and

inaction of Defendants Gantwerk and Zangrillo demonstrate reckless indifference to

the rights of A.W. under IDEA.

VI. PLAINTIFF IS ENTITLED TO BRING INDIVIDUAL CAPACITY CLAIMSAGAINST DEFENDANTS GANTWERK AND ZANGRILLO

State Defendants begin their argument by again ignoring controlling Third Circuit

precedent and claiming that Plaintiff cannot bring a Section 1983 claim based on an

IDEA violation at all. SDb22-23. In Matula, supra, the Third Circuit clearly held that

Congress had “explicitly approved” Section 1983 actions predicated on IDEA. 67

F. 3d at 493-494 (emphasis in original). Based on Matula, the Third Circuit in

Ridgewood, supra, then specifically rejected the contrary holding of Sellers,

supra,172 F. 3d at 252. State Defendants’ reliance on Sellers, SDb22, is thus

13 State Defendants’ position that IDEA does not provide them withunambiguous notice of their liability under Section 1983 or of their exposure tomonetary damages is also misplaced, for the reasons set forth in Point VI.A., infra,and Point V.C., supra.

14 State Defendants are unable to cite any cases holding that an individualpublic official cannot be sued under Section 1983 to vindicate rights under IDEA.State Defendants do cite one case for the proposition that an individual public officialcannot be sued under Section 1983 to vindicate rights under Section 504, SDb23-25(citing Vinson v. Thomas, 288 F. 3d 1145, 1155-56 (9th Cir. 2002)), but that caseconflicts with the Third Circuit’s ruling in Matula, 67 F. 3d at 494, 502 (holdingmonetary damages can be sought directly under Section 504, as well as on Section1983 claim predicated on Section 504, and rejecting individual defendants’ claim toqualified immunity).

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misplaced.13

A. Public Officials Can be Sued in Their Individual Capacities UnderSection 1983 For Violations of IDEA and Section 504

Whether or not Plaintiff could sue individual state defendants directly under

IDEA and Section 504 – which is not at issue in this case – it is undeniable that he

may do so under Section 1983 to enforce his rights under those laws. Matula, 67 F.

3d at 494, 491 (holding Section 1983 supplies private right of action under IDEA and

Section 504 for case against individual defendants); see also Doe v. Town of

Framingham, 965 F. Supp. 226, 230 (D. Mass. 1997) (defendants’ argument that

IDEA does not provide for individual liability is “not applicable” where plaintiff

brought suit pursuant to Section 1983 “which provides for individual liability”).14

The ability to sue public officials in their individual capacity under Section 1983

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is consistent with Section 1983's focus on individual liability. See 42 U.S.C. § 1983

(imposing liability on “any person who, acting under the color of state law, deprives

another of any rights, privileges, or immunities secured by the Constitution of the laws

of the United States”) (emphasis added); Monroe v. Pape, 365 U.S. 167 (1961)

(holding Section 1983 authorizes suits against individuals who deprive plaintiff of

rights while acting under color of law). As recognized in Gonzaga, supra, 536 U.S.

at 284, “[p]laintiffs suing under § 1983 do not have the burden of showing an intent

to create a private remedy because § 1983 generally supplies a remedy for the

vindication of rights secured by federal statutes.”

The ability to sue public officials in their individual capacity under Section 1983

for violations of IDEA is also consistent with Congressional intent. In response to the

Supreme Court decision in Smith v. Robinson, 468 U.S. 992 (1984) (holding that

IDEA’s predecessor statute provided exclusive means by which parents and children

can secure FAPE), Congress amended IDEA’s predecessor, with a provision that

remains in IDEA today, assuring that “[n]othing in this chapter shall be construed to

restrict or limit the rights, procedures, and remedies available under the Constitution,

title V of the Rehabilitation Act of 1973, or other Federal statutes protecting the rights

of children and youth with disabilities....” 20 U.S.C. § 1415(l) (formerly 1415(f)).

See Matula, 67 F. 3d at 493-494.

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For these reasons, Plaintiff’s Section 1983 claim against Defendants Gantwerk

and Zangrillo in their individual capacities for violations of his rights under IDEA and

Section 504 must be allowed to proceed.

B. Defendants Gantwerk and Zangrillo are Not Entitled to QualifiedImmunity

Defendants Gantwerk and Zangrillo are not protected by qualified immunity

because that defense applies only to the extent that “their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As set forth

below, Defendants Gantwerk and Zangrillo’s actions in this case violate this standard.

The Supreme Court has established a two prong test for determinations of

qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). The first inquiry is

whether the public official’s conduct violated a constitutional or statutory right. Id.;

Gruenke v. Seip, 225 F. 3d 290, 298 (3d Cir. 2000). The second inquiry is whether

the right was clearly established. Saucier, 533 U.S. at 201.

1. Defendants Gantwerk and Zangrillo Violated Plaintiff’s Statutory Rights

Plaintiff’s overarching argument is that Defendants Gantwerk and Zangrillo

violated his statutory right to FAPE under IDEA. 20 U.S.C. §§1401(d)(1)(A),

1412(a)(1)(A). Specifically, the statutory rights violated were A.W.’s right: 1) to have

any complaint pertaining to his identification, evaluation, or receipt of FAPE

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addressed by the SEA, 20 U.S.C. §1415(b)(6); 2) to have his condition of dyslexia

identified and included in his determination of eligibility and development of his IEP,

20 U.S.C. §1401(26)(B), 20 U.S.C. § 1414(b)(3)(C) & (D); and 3) to receive FAPE

consisting of “specially designed instruction” to meet his “unique needs,”20 U.S.C.

§ 1401(25), and services designed to allow him to “advance appropriately” toward

attaining annual goals, 20 U.S.C. § 1414(d)(1)(A)(iii)(I), pursuant to an IEP that

confers “significant learning” and “meaningful benefit,” Ridgewood, 172 F. 3d at

247, citing Polk v. Central Susquehanna Intermediate Unit 16, 853 F. 2d 171, 182, 184

(3d Cir. 1988).

The opportunity to present complaints related to a student’s identification,

evaluation, or receipt of FAPE is set forth explicitly within the procedural safeguards

that IDEA affords to parents and students. 20 U.S.C. §1415(b)(6). Those safeguards

have been recognized by the Supreme Court as an essential element of the federal

statute, critical to ensuring that the rights of students with disabilities are protected.

Board of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 205

(1982). To ensure that the opportunity to present complaints is a meaningful one, it

is axiomatic that the SEA must address and resolve the complaints presented. See

Beth V., 87 F. 3d at 86-87. Federal regulations setting forth the complaint procedures

that a SEA must follow require the issuance of “a written decision to the complainant

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that addresses each allegation in the complaint....” 34 C.F.R. § 300.661(a)(4). The

written decision must also contain all of the agency’s “[f]indings of fact and

conclusions.” Id. at (i).

Defendants Gantwerk and Zangrillo violated this right by failing to ensure that

each allegation of A.W.’s complaint was addressed. Zangrillo did so by conducting

a limited investigation, despite being well aware of the scope of the investigation

requested, and well aware of the complainant’s objections to her agency’s decision to

investigate only a single issue in response to a complaint raising five issues. Zangrillo

Cert. Ex. C, Zangrillo Tr. 36:19 – 36:25. Gantwerk did so by approving an

investigation report that did not address and resolve all issues raised in the complaint.

FPO ¶ 78; compare Zangrillo Cert. Ex. A (CI request) with Zangrillo Cert. Ex. E (CI

report).

Further, Defendants Gantwerk and Zangrillo specifically chose to delete a finding

of the complaint investigation report, namely that a Houghton Mifflin representative

reported that the Houghton Mifflin program in use in Jersey City was not adaptable

for use with students with reading disabilities. Gantwerk Tr. 35:6 – 36:12; Zangrillo

Tr. 67:23 – 68:12. By deleting this finding, Gantwerk and Zangrillo undermined the

integrity and accuracy of the state’s complaint system. JCPS was not informed that

the district’s reading series was not considered by the publisher to be appropriate for

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use with students with reading disabilities, and JCPS was not directed to stop using

the Houghton Mifflin curriculum for those students. Gantwerk Tr. 34:23 – 35:24;

Zangrillo Tr. 67:23 – 68:17; Zangrillo Cert. Ex. E.

Eligibility under IDEA requires possession of a disability set forth in the statute.

20 U.S.C. § 1401(3)(A). A specific learning disability (SLD) is one of the specifically

enumerated disabilities, and included in the definition of SLD is the condition of

“dyslexia.” 20 U.S.C. § 1401(26)(B).

IDEA makes clear that an educational agency’s responsibility does not stop at

determining that a child has a SLD. The statute requires instruction designed to meet

a student’s “unique needs,” 20 U.S.C. § 1401(25), and requires that the student be

“assessed in all areas of suspected disability,” 20 U.S.C. § 1414(b)(3)(C). Dyslexia

has specific, crucial educational implications that can only be addressed if the

condition is diagnosed and distinguished from other SLDs. Inquiry of Arons, 16

EHLR 1028, 1030 (1990) (appended hereto).

Gantwerk and Zangrillo violated A.W.’s right to have his dyslexia identified and

his unique needs addressed in his educational programming by refusing to use the

term dyslexia or distinguish it from other reading disabilities. Zangrillo Tr. 23:14 –

24:8; Gantwerk Tr. 21:24 – 22:2, 54:14 – 54:19, 59:9 – 59:18. In light of Congress’

decision to specifically highlight dyslexia within the definition of SLD, as well as its

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emphasis on each student’s “unique needs,” Zangrillo and Gantwerk’s position that

“there was no federal or state requirement” to diagnose dyslexia, Zangrillo Tr. 24:1

– 24: 4, 36:23 – 36:25, is wrong as a matter of law. As a result, their failure to require

that JCPS assess and identify A.W.’s dyslexia, as well as their failure to order

compensatory education for JCPS’ delay in diagnosing A.W.’s dyslexia, violated his

rights under IDEA.

Under IDEA, it is the responsibility of the SEA to ensure that all students with

disabilities receive FAPE. See Point V, supra. The definition of FAPE incorporates

the right to “specially designed instruction” to meet the student’s “unique needs,” 20

U.S.C. §§ 1401(8), (25), as well as to services designed to allow the student to

“advance appropriately toward attaining the annual goals” of his or her IEP, 20 U.S.C.

§ 1414(d)(1)(A)(iii)(I). In the Third Circuit, the standard for determining whether a

student has been denied FAPE and is entitled to some form of relief requires a

determination that the student’s IEPs failed to provide “significant learning” and

“meaningful benefit.” Ridgewood, 172 F. 3d at 247, citing Polk, 853 F. 2d at 182,184

(3d Cir. 1988). The amount of benefit required must be “gauged in relation to the

child’s potential,” Polk, 853 F. 2d at 185.

In this case, Zangrillo was specifically provided records that made clear on their

face, or at least strongly suggested, that A.W. was not receiving FAPE from JCPS.

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Zangrillo Cert. Ex. A, Athos Cert. Ex.C-E. Those records documented that A.W. was

a 16 year old student reading and writing at a first to second grade level who, upon

initial testing, had a full scale IQ of 103. Id. Those records further indicated that a

friendly, outgoing youngster of average intellectual ability had, after ten years of

special education, become a depressed and angry youth whose problems were

attributable to his inability to read. Id. Faced with this information, and with specific

requests for relief for this student, Zangrillo chose to ignore A.W.’s plight. She did

not investigate further, did not direct any relief specific to this student, and did not

take any steps to see whether A.W. benefitted from the general corrective action that

was ordered. Zangrillo Cert. Ex. E, Zangrillo Tr. 65:3 – 65:9, 69:1 – 69:4. Zangrillo

thus violated A.W.’s right to FAPE.

While Gantwerk’s position is that she did not review the documents specific to

A.W., she was aware that there were specific students whose complaints initiated the

investigation and was aware that relief was requested for A.W. Gantwerk Tr., 47:10

– 47:25. Gantwerk received and approved a report that showed a severe systemic

problem in the delivery of appropriate services to students with reading disabilities in

JCPS. FPO ¶ 78; Zangrillo Cert. Ex. E. While she had to know that these findings

impacted the specific students who initiated the complaint, she did not direct any relief

to those specific students and did not take any steps to see whether A.W. benefitted

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from the general corrective action that was ordered. Gantwerk Tr. 48:12 – 48:16.

Gantwerk thus violated A.W.’s right to FAPE.

2. The Rights Defendants Gantwerk and Zangrillo Violated WereClearly Established

The inquiry into whether the right at issue is clearly established “must be

undertaken in light of the case’s specific context, not as a broad general proposition.”

Saucier, 533 U.S. at 201. This means that “[t]he contours of the right must be

sufficiently clear that a reasonable officer would understand that what he is doing

violates that right.” Id., citing Anderson v. Creighton, 483 U.S. 635, 640 (1987). The

exact conduct in question need not previously have been held unlawful, Anderson,

483 U.S. at 640, and if closely analogous case law is not available, a right can be

clearly established on the basis of “common sense.” DeBoer v. Pennington, 206 F.3d

857, 865 (9th Cir. 2000), remanded by City of Bellingham v. DeBoer, 532 U.S. 992

(2001), rvs’d on other grounds, 287 F.3d 748 (9th Cir. 2002).

The rights of A.W. violated by Zangrillo and Gantwerk were all clearly

established, such that both actors had to know that what they were doing was wrong.

Federal regulations establishing that complaint investigation reports must address

“each allegation in the complaint” and contain “[f]indings of fact” have been in

effective since at least 1992, well before Zangrillo and Gantwerk worked on A.W.’s

complaint, and remain in effect today. 34 C.F.R. § 300.661(a)(4) (1992); 34 C.F.R.

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§ 300.661(a)(4) (1999). That the failure to disclose material information in the

reporting of an investigation is wrong is an elemental proposition. Implicit in the

requirement of a complaint system, and understood by all, is the obligation to report

findings accurately and truthfully.

The identification of dyslexia as a disorder included in the definition of SLD has

been part of IDEA since its inception in 1990, 20 U.S.C. § 1401(a)(15), and was first

included in IDEA’s predecessor in 1975, Pub. L. 94-142 § 4(a)(1). The term

dyslexia has also been included in the federal regulations since at least 1984. 34

C.F.R. § 300.5 (b)(9) (1984).

Significantly, the Office of Special Education and Rehabilitation Services of the

U.S. Department of Education (OSERS) issued a clarification letter in 1990 in

response to an inquiry from a New Jersey advocate that addressed this very issue of

diagnosing dyslexia. Inquiry of Arons, supra. As described by the advocate, the

uniform response in New Jersey public schools has been “New Jersey does not

recognize dyslexia. It is a medical term, not an educational one....” 16 EHLR at 1029.

OSERS clarified that a disabling condition does not need to correspond to a state’s

classification system for a student to be entitled to FAPE, adding “[s]hould a child

with dyslexia be determined to be SLD, the diagnosis of dyslexia would be one factor

that must be considered in the development of the child’s individualized education

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program (IEP) and in the selection of placement options.” 16 EHLR at 1030. See

also Lascari v. Board of Educ. of Ramapo Indian Hills Regional High Sch. Dist., 116

N.J. 30, 560 A. 2d 1180 (1989). For state officials in 1998, and even today, to refuse

to use the term dyslexia and to support a district’s failure to diagnose dyslexia, flies

in the face of this clearly established law.

The right to FAPE is also well established. See, e.g., 20 U.S.C. § 1400(d)(1)(A);

20 U.S.C. § 1412(a)(1)(A). Since at least 1988, it has been clear in this Circuit that

FAPE requires “significant learning” and “meaningful benefit.” Ridgewood, supra,

citing to Polk, supra. State liability for denials of FAPE was established as far back

as the 1981 Kruelle decision. 642 F.2d 687. See discussion of Kruelle in Point V.A.,

supra. Any reasonable person confronted with A.W.’s circumstances at the time of

his complaint investigation would have determined that the failure of a seventeen year

old boy, who entered JCPS with an IQ of 103, to progress beyond a second grade

reading level warranted, at a minimum, further investigation.

Gantwerk and Zangrillo’s argument that they “are not required to provide

individual relief to students in response to a[n IDEA] complaint,”SDb31, is

contradicted by the federal regulations. Those regulations require states to consider

individual and group needs, stating that remedies “must address”:

(1) How to remediate the denial of those services, including, as appropriate,the awarding of monetary reimbursement or other corrective action

-34-

appropriate to the needs of the child; and(2) Appropriate future provision of services for all children with disabilities.

34 C.F.R § 300.660(b) (emphasis added). Moreover, common sense dictates that

individual students must be entitled to relief when their circumstances are brought to

the attention of state officials through the state’s federally mandated complaint

resolution process.

Finally, Gantwerk and Zangrillo are not being held liable for the failures of JCPS.

SDb32-33. Their liability derives from their own action and inaction in the face of

A.W.’s complaint.

VII. PLAINTIFF IS ENTITLED TO BRING CLAIMS FOR DECLARATORYRELIEF

State Defendants’ argument that Plaintiff’s claim for declaratory relief must be

dismissed is based on the erroneous ground that there is no justiciable controversy

within the meaning of Article III, Section 2 of the United States Constitution. SDb33-

34. State Defendants rely on the facts that A.W. no longer resides in New Jersey and

is not subject to future injury by the Jersey City Public Schools as the basis for its

argument. SDb34.

The standard for satisfying the case or controversy requirement, also known as

constitutional standing, has three prongs: “1) a legally recognized injury; 2) caused

by the named defendant or at least ‘fairly traceable to the challenged action of the

-35-

defendant’; and 3) that a favorable decision by the court would likely redress.” Pryor

v. Nat’l Collegiate Athletic Ass’n, 288 F. 3d 548, 561 (3d Cir. 2002), citing Bennett

v. Spear, 520 U.S. 154 (1997). These are constituent components of “the more

general, overarching requirement that a plaintiff have a personal stake in the outcome

of litigation.” Rosetti v. Shalala, 12 F. 3d 1216, 1224 n. 18 (3d Cir. 1993).

Contrary to State Defendants’ position, Plaintiff maintains a personal stake in the

outcome of this litigation. Because Plaintiff can show that “he personally has

suffered some actual or threatened injury as a result of the putatively illegal conduct”

of Defendants, he has a live case or controversy, irrespective of his residency, his

student status, or anything else. Id. at 1224. Further, Plaintiff’s injury is likely to be

redressed by a favorable judicial decision awarding him monetary damages. P.N. v.

Greco, 282 F. Supp. 2d at 248 (recognizing that wrongful termination by school which

student no longer attends was “redressible ... through awards of damages”).

VIII. THERE IS NO BASIS TO ABSTAIN FROM EXERCISINGJURISDICTION OVER PLAINTIFF’S STATE CONSTITUTIONAL CLAIMS

State Defendants’ argument that the abstention doctrine of Younger v. Harris, 401

U.S. 37 (1971) applies to this case completely lacks merit. Abstention under Younger

is appropriate only when: 1) there are pending state proceedings; 2) that implicate

important state interests; and 3) that afford an adequate opportunity to raise the federal

claims. Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200

15 The last major decision by the New Jersey Supreme Court in the Abbottseries of cases, SDb35-36, was Abbott v. Burke, 153 N.J. 480, 710 A.2d 450 (N.J.1998). The Court did not retain jurisdiction, but has heard several motions in aid oflitigants’ rights since then, for the sole purpose of clarifying and enforcing its 1998order. See, e.g., Abbott v. Burke, 177 N.J. 578, 832 A. 2d 891 (2003).

-36-

(3d Cir. 1992) (citations omitted). Moreover, as acknowledged by State Defendants,

SDb36, Younger abstention applies only when federal court action interferes with

ongoing state proceedings. Id. at 1200-1201 (noting typical grounds for Younger

abstention arise when federal litigant seeks to enjoin state proceeding or attack state

judgment).

The grounds for Younger abstention are not met here. First, there is no pending

proceeding in Abbott v. Burke.15 Second, there is no conceivable argument that

A.W.’s claims for damages based on his particular circumstances would have any

effect whatsoever on the state court proceedings. Finally, as the class action in Abbott

did not encompass any IDEA claims, there is no opportunity for A.W. to litigate his

individual federal IDEA claims in that case.

For all these reasons, abstention is inappropriate and must be denied.

IX. THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL DONOT PROVIDE A BASIS TO DISMISS PLAINTIFF’S CLAIM UNDERCOUNT NINE

State Defendants argue that Plaintiff’s claim that he was denied a thorough and

efficient education while a student in the Jersey City Public Schools is precluded

16 Under State Defendants’ argument, every child in every Abbott districtwould be precluded from advancing any claim that he or she has been denied athorough and efficient education, regardless of whether the particular basis for thestudent’s claim had been addressed by the Abbott ruling.

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simply because the issue of whether students in the Jersey City Public Schools

received a thorough and efficient education was previously litigated in the Abbott v.

Burke class action, and because Plaintiff was a member of the Abbott class. SDb38.

In so arguing, State Defendants completely misapply the doctrines of res judicata and

collateral estoppel.16

Under both New Jersey and federal law, a class action judgment binds the class

members as to matters actually litigated, but does not resolve any claims based on

individual circumstances that were not addressed in the class action. See, e.g., Garvey

v. Township of Wall, 303 N.J. Super. 93, 102 (App. Div. 1997) (holding individual

class member’s claim was not barred because he did not have a “fair and reasonable

opportunity” to litigate the claim in the class action). See also Cooper v. Federal

Reserve Bank of Richmond, 467 U.S. 867, 880-81 (1984). This is because the class

action device is intended to establish a procedure for the adjudication of “common

questions of law and fact,” not the claims of individual class members or subsets of

the class. Parisi v. North Bergen Mun. Port Auth., 105 N.J. 25, 32-33 (1987); Cooper,

467 U.S. at 880-81.

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Since Abbott v. Burke addressed the effect of the state’s funding mechanism on

the quality of education in New Jersey’s poor urban districts, without considering the

particular plight of students with severe reading disabilities, it cannot possibly

preclude Plaintiff’s claim that he was denied a thorough and efficient education

because of illegal policies and practices that affected students with dyslexia. See

Cameron v. Tomes, 990 F. 2d 14, 18 (1st Cir. 1993) (refusing to apply the res judicata

doctrine in a case where the underlying class action addressed “general

circumstances” regarding the conditions of confinement in an institution, not the

“distinctive plight” of individual class members); Hiser v. Franklin, 94 F. 3d 1287,

1293 (9th Cir. 1996) (holding unnamed class member not precluded by prior class

action regarding prison conditions from bringing civil rights action challenging

specific prison policy because preclusion would mean all future claims by prisoners

challenging unconstitutional conditions would be barred, thereby causing class actions

to become “obsolete”).

X. PLAINTIFF’S NJLAD CLAIM SHOULD PROCEED TO TRIAL

State Defendants argue that A.W.’s claim under NJLAD should be dismissed

because the State has neither denied A.W. an opportunity to participate in a program

nor discriminated against him. SDb40. To the contrary, for all the reasons discussed

in Point V of this brief, the ultimate responsibility for ensuring that A.W. was given

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the opportunity to participate in educational programs so that he received a FAPE was

with the State of New Jersey.

Defendants argue that the standard of decision for his NJLAD claim is the same

as under Title II of the Americans with Disabilities Act (“ADA”). SDb40. However,

Plaintiff alleges a claim under Section 504, not the ADA. For purposes of this motion

there are no significant differences between NJLAD and Section 504. Hall v. St.

Joseph’s Hosp., 343 N.J. Super. 88, 100 (App. Div. 2001). To prove his claim under

Section 504, A.W. need only show that (1) he is disabled; (2) he is eligible for

benefits; (3) he was denied the opportunity to participate in programs to ensure that

he received a FAPE; and (4) JCPS and the State receive federal funds for their

education programs.

Defendants do not dispute that A.W. satisfies the first, second, and fourth criteria.

The dispute centers on whether the State denied A.W. a FAPE. There is evidence to

show that the State was directly involved and responsible for the alleged denial of

FAPE. There is evidence to show that NJDOE’s failure to adopt state regulations

incorporating the disabling condition of dyslexia until June 2000 was responsible for

JCPS’ failure to diagnose A.W.’s dyslexia. Gantwerk Tr. 55:2 – 56:15; Braak Tr.

42:20 – 43:9; Quirolo Tr. 30:17 – 31:15; Hepburn Tr. 56:14 – 56:23. There is

evidence to show that NJDOE’s approval of JCPS’ 1996-1999 special education plan

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emphasizing whole language instruction contributed to the inappropriate programming

received by A.W. Athos Cert. Ex. Q. Contrary to State Defendants’ position that they

did all they were required to in conducting the December 1997 complaint

investigation related to A.W.’s case, a reasonable jury can find that NJDOE denied

FAPE to A.W. through the handling of that investigation. See Point VI.A.

Accordingly the NJLAD claim should not be dismissed.

CONCLUSION

For all the foregoing reasons, State Defendants’ Motion for Summary Judgment

should be denied in its entirety.

Respectfully submitted,EDUCATION LAW CENTER

Dated: April 30, 2004 By: s/ Elizabeth Athos (EA3320)Elizabeth Athos, Esq.