A collection of statewide agencies that have sued the New Jersey Department of Education and the New Jersey State Board of Education for systematically failing to comply with the Individuals with Disabilities Act have met a roadblock in their efforts to build their case.
The organizations sued to enjoin the defendants from violating the rights of children with disabilities to receive a free appropriate public education in the least restrictive environment in Disability Rights New Jersey, et al. v. New Jersey Dep’t of Education, et al. They retained experts to put together a report to show the statewide level of inclusion of disabled students within general education classes and sought to conduct classroom observations of a randomly selected group of students throughout New Jersey to provide data for the experts’ report.
When twenty New Jersey school districts that plaintiffs had subpoenaed refused to allow the observations, the plaintiffs filed a motion to compel. The court denied the motion.
First, it made a distinction between the responsibilities of school districts and the responsibilities of state education authorities. The plaintiffs, found the court, had failed to explain how information concerning whether students are receiving services listed in their IEPs is related to a state education authority’s responsibilities under the IDEA. The responsibility for providing services listed in an IEP resides in a school district, not in the state education authority. The IDEA gives the state only general supervisory responsibilities for the IDEA and plaintiffs had not provided any explanation as to how a failure by a local school district could support the allegation that a state education authority had failed to comply with the IDEA.
The court was also concerned about the apparent subjectivity of the proposed observation process. Although the court had provided the plaintiffs with an opportunity to provide it with a check list of objective bench marks, they had failed to do so.
Furthermore, the court was concerned that the process of information gathering described by the plaintiffs would not achieve its stated goals. More specifically, to the extent that observations would only last two or three hours per student it would be impossible to know with any certainty whether a failure to observe a given service meant that the service was not being provided or that it was simply not being provided in the window of time in which the observation took place.
Finally, the court was concerned that there were no safeguards in place to ensure that the individuals who the plaintiffs proposed to retain to conduct the observations would not pose a risk to children in the classroom.
Wendy Beetlestone is a shareholder at the law firm of Hangley Aronchick Segal Pudlin & Schiller where she chairs the Education Group.