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Special Education

Children with disabilities are among the most vulnerable members of society, and the "free and appropriate education” to which they are entitled is a crucial element of success later in life. In passing the Individuals with Disabilities Education Act, the U.S. Congress stated that high expectations and access to the general education curriculum in a general education classroom (to the maximum extent appropriate) are critical to improving educational outcomes for children with disabilities.

For over ten years, ELC has been at the forefront of special education advocacy in New Jersey. ELC has impacted the lives of thousands of students with disabilities through systemic litigation, individual advocacy, legislative work, parent and attorney trainings, know-your-rights publications, and coalition building. In collaboration with Volunteer Lawyers for Justice and other partners, well over 300 attorneys have been trained by ELC to handle special education cases on a pro bono basis. ELC led the successful effort to place the burden of proof in administrative hearings on school districts in all cases.

ELC established and hosts New Jersey Special Education Practitioners, an organization with over 100 attorney and non-attorney advocate members who meet regularly to share special education advocacy strategies and work together with ELC to affect policy changes at the state and local levels. ELC's publication, The Right to Special Education in New Jersey, with over 50 pages of text, 20 forms and nearly 600 footnotes, is the go-to book for special education attorneys and parents alike. A Spanish version of the report is also available.

Current Issues

ELC, along with other prominent disability rights and education advocacy organizations, is working to change New Jersey's dismal record of segregating more children with disabilities, both in- and out-of-district, than any other state in the nation. Through grassroots advocacy, litigation and a school-based study involving experts from around the country, ELC is intent on making the "least restrictive environment” a reality for all NJ children with disabilities.

As a member of the New Jersey Coalition for Special Education Funding Reform, ELC advocates for an adequate and equitable, statewide, special education funding mechanism. ELC has filed an appeal, representing the Statewide Parent Advocacy Network, to enforce the State's obligation to conduct an independent study of the State's current census-based method of funding special education. That independent study is underway, and is examining a funding methodology that reimburses school district's based on the State's average classification rate, regardless of whether those districts serve greater or lesser numbers of students with disabilities.

ELC, along with co-counsel Gibbons, P.C. and the Center for Social Justice at Seton Hall Law School, represents the plaintiff class in a federal court action against Newark Public Schools and the New Jersey Department of Education. The case, M.A. v. Newark Public Schools, seeks to entirely revamp Newark’s special education system and challenges the State’s failure to appropriately monitor districts and provide adequate relief in response to special education complaint investigation requests.

ELC Publications on Special Education

Transition Planning, English (Revised 7/19/12) Transition Planning Spanish (Revised 7/27/12)

Including Children with Disabilities in State Pre-K Programs (February 2010)

The Right to Special Education in New Jersey: A Guide for Advocates, English (2008)

The Right to Special Education in New Jersey: A Guide for Advocates, Spanish (2008)

Special Education Funding in New Jersey: A Policy Analysis (December 2007)

Long Range Facilities Planning and Design Implementation for Students with Disabilities: A Guide for New Jersey School Districts (September 2005)

For more, visit the Publications page.

Additional Resources

Regulations/Reports

Organizations

Significant Cases

M.A. v.  Newark Public Schools

In 2001, ELC with co-counsel Gibbons Del Deo, filed a class action lawsuit against Newark Public Schools and the New Jersey Department of Education, alleging that Newark and the State failed to identify, locate, refer and evaluate students with disabilities for special education services, failed to provide these students with appropriate special education services, and failed to provide “compensatory education” for the deprived services. The complaint also charged the State with failure to monitor school districts and failure to provide appropriate relief in response to special education complaint investigation requests. [Docket No. 01-cv-3389 (US District Court for the District of NJ) Docket No. 02-1799 (US Court of Appeals for the Third Circuit)] 

Status: Plaintiffs obtained a preliminary injunction on behalf of two of the named plaintiffs, and withstood extensive motions to dismiss from both sets of defendants. In a decision from the Third Circuit, the Court affirmed both the preliminary injunction and the denial of the motions to dismiss. After a prolonged and unsuccessful attempt to settle the matter, the district court certified the class in 2009 in response to the motion brought by ELC, Gibbons and newly-added co-counsel, Seton Hall Law School Center for Social Justice. The parties then conducted additional discovery and again commenced settlement discussions. The parties entered into a Settlement Agreement, which was endorsed by the Court in 2012. The Settlement Agreement calls for the provision of special education services on a timely basis, “compensatory education” for students who did not receive timely services, implementation of a comprehensive special education database, mandatory staff training, extensive reporting of compliance activities, guidelines for corrective action if warranted and independent monitoring of special education services.  Newark has issued two Compliance Reports (July 2012 and February 2013), and the State has instituted one Corrective Action Plan. ELC is monitoring NPS and State compliance with the Settlement Agreement and, together with Seton Hall, prepared parent training materials in English, Spanish, Portuguese and Creole, and is training parents across the district.

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A.R. v. Freehold Regional High School Board of Education

ELC, with the support of several pro bono attorneys, filed a motion on behalf of a group of disability advocacy organizations to appear as amici curiae in this case regarding who should bear the burden of proof in a due process hearing when a school district seeks to change a child’s special education Individualized Education Program (IEP). The amicus brief argued that, pursuant to the U.S. Supreme Court case of Schaffer v. Weast, the burden is on the district when it seeks to change the IEP, even where the parent files the hearing request to challenge the school district’s action. The brief additionally explained why placing the burden of proof on parents in such cases would be unfair, violate public policy and undermine the goals of the Individuals with Disabilities Education Act. (United States District Court for the District of NJ Docket No. 06-cv-03849)

Status: Shortly after ELC filed the amicus brief, the school district settled the case with the student and the matter was dismissed. Subsequently, ELC successfully spearheaded an advocacy effort, with other New Jersey special education practitioners, that resulted in the passage of legislation imposing the burden of proof at special education hearings on school districts in all cases.

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A.W. v. Jersey City Public Schools

ELC filed a federal lawsuit to challenge the failure of a school district, the state education department, and individual employees to identify and remediate A.W.'s dyslexia. The case reached the Third Circuit twice, with the Court holding in the first decision (2003), that the state defendants had waived sovereign immunity by accepting federal financial assistance and could therefore be sued under IDEA and Section 504 and, in the second decision (2007), that individual state defendants could not be held liable under Section 1983. A.W.'s claims against his school district and NJDOE were successfully resolved through settlement. [341 F.3d 234 (3d Cir. 2003), 486 F. 3d 791 (3d Cir. 2007)]

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Baer v. Klagholz

In 2001, the New Jersey Superior Court, Appellate Division, ruled in favor of the plaintiffs on eight challenges to the State’s special education regulations brought by the Education Law Center and co-counsel. The Appellate Division ruling included the mandate that school districts provide parents with evaluation reports prior to eligibility determination meetings, that all students with disabilities receive assessments to determine appropriate post-secondary outcomes, that the pool of community rehabilitation programs for older students include those programs that serve students with the most severe disabilities, and that the scope of IDEA’s disciplinary rights and protections be broadened to comply with federal law. [Docket No. A-7451-97T3 (Superior Court of NJ, Appellate Division)]

Status: Plaintiffs were subsequently successful in a contested motion for prevailing party attorney’s fees.

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Disability Rights New Jersey v. New Jersey Department of Education

In 2007, ELC, together with pro bono co-counsel, filed a complaint in the United States District Court for the District of New Jersey challenging the New Jersey Department of Education’s failure to educate children with disabilities in the least restrictive environment as mandated by the Individuals with Disabilities Education Act. [Docket No. 07-cv-02978 (US District Court for the District of NJ) Docket No. 08-8059 (United States Court of Appeals for the Third Circuit)]

Status: The District Court denied the State’s Motion to Dismiss and the Court of Appeals for the Third Circuit denied the State’s request for an Interlocutory Appeal. The case is pending in the United States District Court for the District of New Jersey; discovery is ongoing.

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M.A. v. Newark Public Schools

In 2001, ELC with co-counsel Gibbons Del-Deo, filed a class action lawsuit against Newark Public Schools and the New Jersey Department of Education, alleging that Newark and the State failed to identify, locate, refer and evaluate students with disabilities for special education services, failed to provide these students with appropriate special education services and failed to provide “compensatory education” for the deprived services. The complaint also charges the State with failure to monitor school districts and failure to provide appropriate relief in response to special education complaint investigation requests. [Docket No. 01-cv-3389 (US District Court for the District of NJ) Docket No. 02-1799 (US Court of Appeals for the Third Circuit)]

Status: Plaintiffs obtained a preliminary injunction on behalf of two of the named plaintiffs, and withstood extensive motions to dismiss from both sets of defendants. In a decision from the Third Circuit, the Court affirmed both the preliminary injunction and the denial of the motions to dismiss. After a prolonged and unsuccessful attempt to settle the matter, the district court certified the class in 2009. The parties are undergoing discovery.

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P.N. v. Clementon Board of Education

ELC filed an amicus brief in this case in the Circuit Court of Appeals for the Third Circuit on its behalf and on behalf of numerous disability and education advocacy organizations. The Third Circuit ruled in favor of the plaintiffs, recognizing that “prevailing party” attorney’s fees are available to students with disabilities who resolve their educational disputes with districts via a stipulated settlement agreement entered into by an administrative law judge. Citing to ELC’s amicus brief, which detailed the important role the attorney’s fee provision plays for poor parents, the Third Circuit noted that it was “particularly troubl[ed]” by the District Court’s holding that reimbursement of a $425 psychologist fee was “de minimis” and did not support a prevailing party finding. ELC then represented the plaintiff in the United States Supreme Court, where it successfully urged the Court to deny the Defendant’s petition for a writ of certiorari [Docket No. 04-4705 (United States Court of Appeals for the Third Circuit) Docket No. 06-7 (US Supreme Court) Docket No. 02-1351 (District Court for the District of NJ)].

Status: Plaintiffs were subsequently successful in a contested motion for prevailing party attorney’s fees before the District Court.

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SPAN v. Hendricks

ELC is representing SPAN in challenging the State's failure to complete an independent study of the census-based funding methodology for special education by June 2010, as required by the School Funding Reform Act. (Superior Court of New Jersey, Appellate Division, Docket No. A-000852-10)

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ELC News Stories on Special Education

For a complete list of stories, visit the Special Education section of the News Archives page.