                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-1995

W B v Matula
Precedential or Non-Precedential:

Docket 95-5033




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"W B v Matula" (1995). 1995 Decisions. Paper 271.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/271


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               UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT



                         No. 95-5033


           W.B., Parent of the Minor, E.J., on her
         own behalf and on behalf of her son, E.J.,
                                 Appellants

                             v.

       JOAN MATULA; MARY ANGELA ENGELHARDT; JUDY BEACH;
  CATHERINE BRENNAN; PATRICIA CERICOLA; DR. GARY DANIELSON;
          ANN PEARCE; KATHLEEN MAHONY; CAROL BURNS;
    FLORENCE NOCTOR; DR. JEFFREY OSOWSKI; NEW JERSEY STATE
         BOARD OF EDUCATION; WARREN COUNTY DEPARTMENT
OF EDUCATION; MARY LOU VARLEY; MANSFIELD BOARD OF EDUCATION;
  STATE OF NEW JERSEY; DEPARTMENT OF EDUCATION DIVISION OF
    SPECIAL EDUCATION; EMPLOYEES OF THE MANSFIELD TOWNSHIP
                      BOARD OF EDUCATION



        Appeal from the United States District Court
               for the District of New Jersey
                  (D.C. Civil No. 93-3124)



                   Argued August 22, 1995

   BEFORE:   GREENBERG, COWEN, and SAROKIN, Circuit Judges

                  (Filed October 17, l995)



                                  Rebecca K. Spar (argued)
                                  Cole, Schotz, Meisel, Forman
                                       & Leonard, P.A.
                                  25 Main Street, 4th Floor
                                  Hackensack, NJ 07601

                                  Attorney for Appellant


                                  David A. Wallace (argued)


                              1
                                                942 Route 517
                                                P.O. Box 741
                                                Hackettstown, NJ         07840

                                                Attorney for Appellees




                              OPINION OF THE COURT




SAROKIN, Circuit Judge:

       Plaintiff, on behalf of her disabled child, seeks damages

for    the    persistent     refusal       of   certain      school   officials       to

evaluate, classify and provide necessary educational services.

The matter was dismissed by the district court on the grounds

that a settlement of the administrative proceeding barred pursuit

of the claims for damages.                 We conclude that the settlement

agreement was not susceptible to summary disposition.                     Indeed, we

question the propriety of demanding and receiving a release of

such    claims    in   exchange      for    providing      services      to   which    a

disabled      child    is   otherwise       entitled.         However,    since   the

settlement agreement did not clearly waive such claims, we do not

determine whether such a waiver would be against public policy.

We do conclude that the agreement does not bar such claims as a

matter of law, and therefore reverse and remand the matter for

trial.

       Plaintiff brought suit pursuant to 42 U.S.C. § 1983, § 504

of    the    Rehabilitation    Act    of    1973,    and   the   Individuals      with

Disabilities      Education    Act     against      school    officials,      alleging

that the child was deprived of his right to a free, appropriate


                                           2
public    education,    in   violation     of    the    U.S.      and    New   Jersey

Constitutions and federal and state statutes and regulations.

Despite resistance by school officials and following extensive

administrative proceedings, the mother ultimately succeeded in

having her child evaluated, classified as neurologically impaired

and provided with special education services.                     Plaintiffs then

sued for compensatory and punitive damages incurred in the period

before the school agreed to provide these services.                     The district

court granted summary judgment in favor of all defendants on all

claims     predicated   upon     a   settlement        of   the    administrative

proceeding.     We will affirm in part, reverse in part, and vacate

in part.



                                      I.

     Plaintiff W.B. and her minor child, plaintiff E.J., moved to

Hackettstown,    New    Jersey   during    the   summer      of    1991.       W.B.'s

requests for special educational services for E.J., defendants'

alleged resistance to these requests, and the damages arising

from this alleged resistance, occurred while E.J. was in the

first and second grades.         We will recount these events in some

detail.    While some of the facts may be in dispute, most are not,

and in any event, in view of the procedural posture of the case,

we recite the facts from the viewpoint of the plaintiffs.

     Before the start of school in the fall of 1991, W.B. met

with defendant Joan Matula, principal of the Mansfield Township

Elementary School ("the school"), to discuss her concerns about

E.J.'s behavioral problems, including touching and hitting other


                                       3
children.    W.B. also completed forms at the school in which she

stated that E.J. had received speech therapy.

     E.J.    entered     the     first    grade        in    September       1991     and    was

placed in a class taught by defendant Mary Angela Engelhardt.

Engelhardt    soon     reported        that       E.J.      exhibited       a    variety      of

disruptive behaviors, including not paying attention in class,

fighting with other students, failing to remain seated, making

continuous noises and repeatedly touching other children.                                    The

teacher also observed that E.J. had difficulty beginning tasks,

finishing those he did start and coloring within the lines.                                  In

addition, throughout the school year E.J. urinated and defecated

in his pants.        In October the school nurse, defendant Florence

Noctor, told W.B. that other children were teasing E.J. because

of his "bathrooming problem." Moreover, within the first few

weeks of school, Engelhardt informed W.B. that E.J. might have

Attention     Deficit      Disorder/Attention                  Deficit       Hyperactivity

Disorder ("ADHD"), a condition with which W.B. was unfamiliar.

     In October, W.B. met with Engelhardt and defendant Carol

Burns, Chief School Administrator and the person responsible for

compliance with the Individuals with Disabilities Education Act

("IDEA"),    20    U.S.C.        §    1400        et    seq.    and     §       504   of     the

Rehabilitation     Act     ("§       504"),       29   U.S.C.     §   794.        The      group

discussed    E.J.'s      behavioral           and      academic       problems,       but    no

defendant referred E.J. for an evaluation or special education

services,    nor     did    anyone       inform          W.B.    of     E.J.'s        possible

entitlement to such services.                 The same month E.J. began to see

Dr. Lee Monday, a private therapist.


                                              4
     After reading about ADHD later in the fall, W.B. raised it

to Dr. Monday, who then diagnosed E.J. as having ADHD.                    W.B. also

spoke with Matula and Engelhardt and sent them literature about

the disorder.         In December W.B. wrote them explaining that she

believed       E.J.'s    behavioral           and    academic     problems      were

attributable to ADHD and specifically requested that E.J. be

permitted to spend additional time with the school's Resource

Team.

     The      first   actual    dispute       between   the     parties   concerned

evaluation.      W.B. asked the school to refer E.J. to the Mansfield

Child Study Team ("CST") for evaluation;1 the school refused, but

finally agreed after W.B. persuaded Matula, Engelhardt, Burns,

and Catherine Brennan, director of the CST,2 to meet in February

1992 with her, Dr. Monday, and a social worker whom Brennan had

agreed   to    let    observe   E.J.   in      the   classroom.       Brennan   had

believed that ADHD did not qualify a child for special services

under IDEA or §504, but when W.B. showed her a memorandum from

the Assistant Secretary of the U.S. Department of Health and

Human Services to the contrary, Brennan relented and approved the

CST evaluation.




1
  Among other duties, each CST in New Jersey is charged with the
responsibility of identifying and diagnosing children needing
special education services, developing public school programs for
disabled    children,  and   referring  disabled   children   for
residential, medical, or psychological treatment.      N.J.S.A §
18A:46-5.
2
  The duties of a CST supervisor "shall include the coordination
of the special education services in the county."        N.J.S.A.
§18A:46-3.

                                          5
       In April 1992, the CST determined that E.J. had ADHD and was

eligible for § 504 services. However, because E.J.'s academic

performance was at or above grade level, the CST concluded he was

not classifiable under IDEA and therefore not eligible for those

services offered under IDEA but not the Rehabilitation Act.                         The

CST concluded:
          [E.J.] has developed academic skills in the areas
     of reading, mathematics and written language that are
     at or above his current grade placement.        He is,
     therefore, not eligible for special education services
     . . . . However, the comprehensive Child Study Team
     evaluation does identify the presence of [ADHD] . . . .
     For this reason, [E.J.] is considered to be a
     handicapped   person   under   Section   504   of   the
     Rehabilitation Act of 1973.

Appendix ("App.") at 98.            Though one examining physician on the

CST      recommended     a      speech        evaluation,      audiometry,          and

tympanometry, these suggestions were not included in the CST

report.

       Despite the CST finding that E.J. suffered from ADHD and was

thus   entitled     to   §    504     services,   defendants      did    not    begin

providing them.        Concerned that the CST evaluation had not fully

assessed    E.J.,   W.B.      asked    defendants    to    fund   an    independent

evaluation. Defendants refused.

       In June 1992, W.B. initiated her first IDEA administrative

proceeding before the New Jersey Office of Administrative Law

("OAL"),     seeking     an     independent       evaluation      of    E.J.,       his

classification as neurologically impaired (a status which would

render     him   eligible     for     IDEA    services),    development        of   an

Individual Education Plan ("IEP"), and costs and fees.                     We will

refer to this proceeding as "E.J. I."               In July 1992, on the date


                                          6
of the E.J. I hearing, respondent Mansfield Board of Education

("the Board" or "Mansfield") signed a consent order agreeing to

an   independent    evaluation    and       adjourning    the    hearing    on   the

balance of W.B.'s petition.

      The    independent   evaluation        took   place       soon    thereafter.

According to ALJ McGill, who heard the first and all subsequent

petitions between W.B. and the Board, the evaluation
     was very significant because the determination was made
     for the first time that E.J. had Tourette's syndrome
     and a severe form of obsessive-compulsive disorder in
     addition to ADHD. Thus, W.B. was substantially correct
     in her belief that the evaluation by the Mansfield CST
     did not properly identify E.J.'s problems.

E.J. v. Mansfield, OAL Dkt Nos. EDS 11659-93/11798-93, Sept. 1,

1994 ("E.J. IV"), at 49.

      In September 1992 E.J. entered the second grade, joining a

class taught by defendant Judy Beach, but his problems continued.

Defendants were still not providing § 504 services.

      As     to   classification,       despite     the     findings       of    the

independent evaluation, in November the CST concluded that E.J.

was perceptually impaired but not neurologically impaired.                       The
distinction is important, because the former classification would

result in a lower level of IDEA services for E.J. than the

latter. W.B. attempted to persuade the school to reclassify her

son as neurologically impaired, and in December 1992, Mansfield

cross-petitioned      to   have     E.J.      classified        as     perceptually

impaired.3
3
 W.B. filed three other petitions in January and February 1993,
seeking to have Mansfield provide her with (1) a written daily
log of E.J.'s behavior problems, (2) independent speech,
occupational therapy, and educational evaluations, and (3)

                                        7
       In April 1993, after nearly ten days of hearings, W.B. and

the Board entered into a settlement stipulating that, as W.B. had

sought, E.J. would be classified as neurologically impaired.                     The

stipulation also incorporated a thirty-page IEP that extended

through the 1993-94 school year and provided for $14,000 for W.B.

for    attorneys   fees        and   costs.       ALJ    McGill    approved      the

settlement, E.J. v. Mansfield Board of Education, OAL Dkt. Nos.

5192-92/10038-92, April 12, 1993 ("E.J. I"), and later observed

that "the settlement was consistent with the overwhelming weight

of    the   evidence   .   .    .    .   [I]t   would   appear    that   W.B.    was

substantially correct on the question of classification."                       E.J.

IV at 49-50. E.J. had nearly completed second grade.



mediation to resolve her request that the Board fund E.J.'s
private psychotherapy. Eventually W.B. prevailed in these
requests too. See discussion of E.J. IV, infra.




                                           8
     More administrative proceedings followed,4 culminating in a

final round of petitions filed in November and December 1993.

These too were consolidated and referred to ALJ McGill, who held

hearings for twenty-seven days, and on September 1, 1994 issued a

fifty-four page opinion ordering the Board to (1) place E.J. in a

private school at the Board's expense; (2) pay prospectively for

E.J.'s   sessions   with   the   private   therapist,   Dr.   Monday;   (3)

reimburse W.B. for the cost of an independent learning disability

evaluation of E.J. which the Board had refused to provide; and

(4) provide a supplemental occupational therapy evaluation.             E.J.

IV at 54.  The ALJ McGill's final paragraph is instructive:
          This decision would not be complete without a
     comment on Mansfield's seemingly endless attacks on the
     parent, W.B.   Evidently, Mansfield believes not only
     that W.B. is overly persistent, but also that she is

4
  Shortly after the E.J. I settlement, W.B. requested a few
modifications to the IEP and then that E.J. be placed in a
private school because the Board was unable to provide the free
appropriate education to which E.J. was entitled.      The Board
refused, two petitions followed, and they were consolidated
before ALJ McGill. At the hearing, W.B. withdrew her request for
private placement. The Board asked that the withdrawal be with
prejudice or conditions, but ALJ McGill granted it without
prejudice. E.J. v. Mansfield Board of Education, OAL Dkt. Nos.
EDS 6199-93/6302-93, August 6, 1993 ("E.J. II") at 9. In August
1993, the ALJ found further that there had been no change of
circumstances since implementation of the IEP and dismissed
W.B.'s petition to modify it. Id. at 5, 8.
     Before the decision in E.J. II was rendered, W.B. filed
another petition alleging changed circumstances that necessitated
E.J.'s placement in a private school. This petition was referred
to ALJ McGill, and on September 1, 1993 he denied it, reasoning
that no changed circumstances warranted amending the IEP. E.J.
v. Mansfield Board of Education, OAL Dkt. No. EDS 7538-93
(September 1, 1993) ("E.J. III"). W.B. appealed E.J. III to the
district court in an action which was consolidated with the
instant damages action.   W.B. and the Board eventually entered
into a stipulation of dismissal regarding the E.J. III claims.
See note 8, infra.


                                    9
     trying to wear down the district to obtain services to
     which E.J. is not entitled. In my view, however, W.B.
     was essentially correct about the major points in
     dispute in these proceedings including evaluation,
     classification    and   placement.     Nonetheless,   the
     district has consistently denied W.B.'s reasonable,
     appropriate, and meritorious requests related to E.J.'s
     education. The basic dynamic of this entire dispute is
     that the district has denied W.B.'s meritorious
     requests and W.B. has been left with no alternative to
     an enormously burdensome struggle in order to obtain
     E.J.'s rights under IDEA.       In my view, the burden
     placed on W.B. was unnecessary, unwarranted and largely
     the   product   of   the   district's  unwillingness   to
     recognize     and    appreciate    E.J.'s    neurological
     impairments despite ample reliable evidence thereof.

E.J. IV at 54.           According to plaintiffs, Mansfield has appealed

E.J. IV to the district court.

    The instant action

     W.B. commenced this proceeding in July 1993, several months

after     the        Board    settled    E.J.        I    by     classifying      E.J.     as

neurologically impaired and approving an IEP.                                The complaint

alleged causes of action directly under § 504; causes pursuant to

42 U.S.C. § 1983 for violations of procedural due process, the

equal     protection         clause,    and        rights      secured    by     IDEA,    its

regulations, § 504, and state statutes; causes pursuant to 42

U.S.C.     §    1985;        and   causes     directly         under     the   New    Jersey

Constitution and statutes.              W.B. sought compensatory and punitive

damages        for    defendants'       failure          to    provide    E.J.    a      free,

appropriate public education.

     The       district       court    consolidated           the   action     with   W.B.'s

appeal of E.J. III.            After the parties consented or stipulated to

the dismissal of a number of defendants, those remaining in the

case were Matula, the principal; Engelhardt, E.J.'s first grade


                                              10
teacher; Beach, his second grade teacher; Brennan, director of

the CST; Burns, the school administrator; and Noctor, the school

nurse, as well as Dr. Gary Danielson, the school psychologist and

a member of the CST; Patricia Cericola, a speech and language

therapist   and   member   of   the   CST;   and   Ann   Pearce,   a

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