                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2005

C.M. v. Bd of Ed Union Cty
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1407




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                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                               No. 04-1407


                  C.M. R.M., individually and on behalf of
                         their minor child, B.M.,

                                     Appellants

                                     v.

         BOARD OF EDUCATION OF THE UNION COUNTY
   REGIONAL HIGH SCHOOL DISTRICT, Union County New Jersey;
    DONALD MERACHNIK, Superintendent, in his official capacity;
JOHN CHRISTIANO, Director of Special Services, in his official capacity and
       individually; CAROL RIEGEL, School Psychologist, in her
    official capacity and individually; PATRICIA HANIGAN, School
         Learning Disabilities Teacher/Consultant, in her official
      capacity and individually; FRANK IMBRIACO, School Social
        Worker, in his official capacity and individually; MARTIN
       MAYER, in his official capacity and individually; LAURIE
    NEURODEVELOPMENTAL INSTITUTE, in its official capacity


 ON APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT
         COURT FOR THE DISTRICT OF NEW JERSEY

                       (Dist. Court No. 95-cv-02743)
                District Court Judge: Dennis M. Cavanaugh


                        Argued: November 2, 2004


       Before: ALITO, FUENTES, and STAPLETON, Circuit Judges
(Opinion Filed: April 19, 2005)


            CAROL MATULA (Argued)
            Haber & Silver
            123 Columbia Turnpike
            Suite 103A
            Florham Park, NJ 07932

                  Counsel for Appellant

            STEPHEN J. EDELSTEIN (Argued)
            (Bd of Ed of the Union Cty., et al.)
            Schwartz, Simon, Edelstein,
            Celso & Kessler
            10 James Street
            Florham Park, NJ 07932

            MARY J. HAMMER (Argued)
            (Carol Riegel, etc.)
            Bucceri & Pincus
            1200 Route 46
            Clifton, NJ 07012

            FRANZ J. SKOK (Argued)
            (Martin Mayer, etc.)
            Johnstone, Skok, Loughlin & Lane
            324 East Broad Street
            P.O. Box 490
            Westfield, NJ 07091

                  Counsels for Appellees




 OPINION OF THE COURT



              2
PER CURIAM:

       The parties are familiar with the facts of this case, so we need not recite them. We

affirm in part, vacate in part, and remand to the District Court so that it may decide

whether Plaintiffs are entitled to injunctive, declaratory, or other appropriate relief with

respect to the Individuals with Disabilities in Education Act (“IDEA”) claims that the

District Court found moot.

                                              I.

       The District Court held that Plaintiffs’ claims under the IDEA, 20 U.S.C. § 1400 et

seq., are moot because B.M. graduated from high school in 1996.1 See Joint Appendix

(“A”) 41; 47-48. Citing Board of Education of Oak Park v. Nathan R., 199 F.3d 377 (7 th

Cir. 2000), the District Court reasoned that, since B.M. is “not seeking compensatory

education or other ongoing relief,” there is no live controversy to adjudicate. See A48.

We disagree.

                                              A.

       Nathan R. cannot control the outcome of this case for two reasons. First, unlike



1
       The District Court also held that Plaintiffs’ claims under the Federal Educational
Rights and Privacy Act of 1974 (“FERPA”), 20 U.S.C. § 1232g(a)(2), are moot.
Plaintiffs only mention this statute once in their 80-page brief, and they offer no legal
arguments as to why the District Court’s holding was erroneous. We therefore deem the
issue waived. See Laborer’s Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994) (finding an issue waived because “passing reference to an issue . . . will not
suffice to bring that issue before this court”) (citations and quotations omitted). Even if it
were not waived, Plaintiffs have no private right of action under the FERPA itself or via
42 U.S.C. § 1983. See Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).

                                              3
the Third Circuit, the Seventh Circuit forecloses the compensatory and punitive damages

sought here. It limits money awards under the IDEA to reimbursements of the cost of

obtaining educational services that the school districts should have provided under the

IDEA. See Sch. Comm. v. Dep’t of Educ., 471 U.S. 359, 369-70 (1985) (authorizing

reimbursement and prospective injunctive relief under the IDEA’s predecessor); Charlie

F. v. Board of Educ., 98 F.3d 989 (7 th Cir. 1996) (“we conclude that damages are not

‘relief that is available under’ the IDEA”); Weyrick v. New Albany-Floyd County Consol.

Sch. Corp., 2004 WL 3059793 at *6-8 (S.D. Ind. 2004) (“To the extent plaintiffs seek

‘monetary damages’ . . . or ‘punitive damages’ . . ., as opposed to reimbursement or

compensatory services, they seek relief that is not available under the IDEA.”).

       In this Circuit, a broader array of remedies is available for 42 U.S.C. § 1983 suits

seeking redress of IDEA violations. Although we have “not settled whether damages are

recoverable in an action arising solely under IDEA,” Bucks County Dep’t of Mental

Health / Mental Retardation v. Pennsylvania, 379 F.3d 61, 68 n.5 (3d Cir. 2004) (citations

omitted), we have held that “in a § 1983 action to enforce IDEA, . . . compensatory

damages are available to remedy IDEA violations.” W.B. v. Matula, 67 F.3d 484, 494

(3d Cir. 1995) (citation omitted). See also Ridgewood Bd. of Educ. v. N.E., 172 F.3d

238, 252 (3d Cir. 1999). We found “that the traditional presumption in favor of all

appropriate relief is not rebutted as to § 1983 actions to enforce IDEA,” and suggested

that “compensatory damages for generalized pain and suffering” may be available in



                                             4
certain § 1983-based IDEA claims. Matula, 67 F.3d at 495. Thus, so long as the relief

B.M. seeks is deemed “appropriate” in this case, it is awardable under Matula.2

       Second, beyond this legal difference between our Circuit and the Seventh, the

specific remedies sought in each case differ as well. Nathan R.’s case was moot because

he requested only special education services, which were to be provided while he was in

high school. See id. at 378. Once he graduated, his need for these services disappeared,

and “no action [the Seventh Circuit] could take would affect his or the School’s rights.”

Id. at 381. In contrast, B.M. seeks a full panoply of remedies, including declaratory and

injunctive relief and compensatory and punitive damages. Remedies of this sort do not

expire upon graduation. For example, if B.M. could demonstrate that the Defendants

caused him quantifiable harm through violations of the IDEA, he could recover

compensatory damages. Plaintiffs may also merit further injunctive relief if they can

prove (as they insisted at oral argument) that copies of B.M.’s records remain

outstanding. In short, unlike in Nathan R., the District Court can still take actions that

will affect Plaintiffs’ and Defendants’ rights, so the case is not moot.3


2
        According to Matula, even punitive damages may be available. See 67 F.3d at 495
(citing Woods v. N.J. Dep’t of Educ., 796 F. Supp. 767 (D.N.J. 1992) with approval for
the proposition that “compensatory and punitive damages are available in [a] § 1983
action for IDEA violations”).
3
       Two further points warrant mentioning. First, it is unclear whether the District
Court’s remark, “It should be noted that this Court gives little weight or credibility to the
testimony of the Plaintiffs,” was addressed to this claim. See A76. If it was, such
credibility determinations alone are insufficient to satisfy the requirements of Rule 52(c),
under which the District Court purported to act. See Newark Branch NAACP v. City of

                                              5
                                             B.

       Although we hold that Plaintiffs’ claims are not moot, we need not remand all of

them. In particular, Plaintiffs’ allegations are insufficient to state a claim for damages

under the IDEA because they fail to allege any identifiable injury.

       Other circuits have established that only those procedural violations of the IDEA

which result in loss of educational opportunity or seriously deprive parents of their

participation rights are actionable. For example, in W.G. v. Board of Trustees, 960 F.2d

1479 (9th Cir. 1992), the Ninth Circuit rejected the notion that procedural flaws

“automatically require a finding of a denial of a [free and appropriate public education

under the IDEA].” Id. at 1484. Instead, the Court held that only “procedural

inadequacies that result in the loss of educational opportunity or seriously infringe the

parents’ opportunity to participate in the IEP formulation process clearly result in the

denial of a [free and appropriate public education].” Id. (citations omitted). Similarly,

the First Circuit observed that “procedural flaws do not necessarily render an


Bayonne, 134 F.3d 113 (3d Cir. 1998) (holding that the district court must make findings
of fact adequate to understand the basis for the court’s decision under Fed. R. Civ. P.
52(c)).
        Second, to the extent, if any, that the Court’s disposition of this claim rests on
collateral estoppel, see A77, a decision of the Office of Administrative Law is not binding
because the erroneous decision of the District Court on mootness rendered that decision
unreviewable. See, e.g., J.S.K. v. Hendry County Sch. Bd., 941 F.2d 1563, 1569 (11th
Cir. 1991) (holding that judicially unreviewed state administrative hearings have no
preclusive effect in federal court); Drinker v. Colonial Sch. Dist., 888 F. Supp. 674, 680
(E.D. Pa. 1995), aff’d on other grounds, 78 F.3d 859 (3d Cir. 1996) (unreviewed state
administrative law IDEA proceedings do not have a preclusive effect upon the federal
court system).

                                              6
[Individualized Education Plan (“IEP”)] legally defective” and held that “[b]efore an IEP

is set aside, there must be some rational basis to believe that procedural inadequacies

compromised the pupil’s right to an appropriate education, seriously hampered the

parents’ opportunity to participate in the formulation process, or caused a deprivation of

education benefits.” Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir.

1990) (en banc) (citations omitted). Consistent with those holdings, the Sixth Circuit

rejected an IDEA claim for technical noncompliance with procedural requirements where

the alleged violations did not result in “substantive deprivation,” see Thomas v.

Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir. 1990), and the Fourth Circuit

refused to award compensatory educational services where procedural faults committed

by Board did not cause the child to lose any educational opportunity, see Burke County

Bd. of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir. 1990).

       A plaintiff bears the burden of establishing the harm caused by the claimed

procedural shortcomings, and Plaintiffs here clearly have not met that burden. Their

primary contentions relating to harms are that B.M.: (1) was deprived of an “appropriate

education” under the IDEA during his sophomore year and the first part of his senior

year; (2) was subject to constant harassment at school; (3) was unable to transfer because

any new school would require his tainted records; and (4) faced obstacles to his post-

secondary education. But Plaintiffs’ bare allegations notwithstanding, the District Court

found that they were “unable to produce any evidence to convince this Court that B.M.



                                             7
was excluded from participation in, denied the benefits of, or subject to discrimination at

school.” A50. It follows that B.M. suffered no educational loss.

       The record is also adequate to show – based on undisputed facts – that the parents

actively participated in the development of B.M.’s IEP at multiple stages. See Target

Range, 960 F.2d at 1484 (identifying loss of opportunity for parental participation as an

alternative type of educational injury under IDEA); Roland, 910 F.2d at 994. B.M.’s

parents’ claim that they were deprived of the opportunity to participate in particular

isolated decisions is insignificant in light of their extensive influence over every step of

B.M.’s education at Livingston.

       Finally, though Plaintiffs did successfully remove certain reports from B.M.’s

records, and while other reports were prepared that should not have been, the damages

arising from those reports and their brief and limited use are purely speculative. See

Taylor Milk Co. v. Int’l Bro. of Teamsters, 248 F.3d 239, 247 (3d Cir. 2001). Because

there are no facts on record that suggest B.M.’s educational interests were prejudiced by

his school’s various procedural errors, no damages are available to petitioners on their

IDEA claims.

       The absence of injury similarly precludes any damages award with respect to

Plaintiffs’ § 1983 claims based on alleged IDEA violations. For the same reasons that

Plaintiffs cannot show that B.M. suffered a loss of educational opportunity or that his

parents suffered a loss of participation in developing B.M.’s educational program, it



                                              8
cannot be said that petitioners suffered anything more than de minimis injury.

Accordingly, no damages are available to petitioners based on their § 1983 claims. See

Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (stating that to be actionable a

Section 1983 tort requires more than de minimis injury).

                                              II.

       Plaintiffs appeal the District Court’s rulings in favor of the Defendants on several

additional claims. They include: 1) summary judgment for Defendant Riegel on

Plaintiffs’ “brownie incident” claim; 2) summary judgment for the Defendants on

Plaintiffs’ substantive Due Process claims; 3) the District Court’s order appointing

Edelstein as custodian; and 4) its denial of certain discovery requests.4

                                              A.

       Plaintiffs contest the District Court’s holding that Defendant Riegel did not

violate their rights during the so-called “brownie incident.” They argue that Riegel’s

actions offended the First Amendment because they constituted retaliation against B.M.

and his parents for filing a legal complaint in this case. We review the grant of summary

judgment de novo, viewing the facts in the light most favorable to the Plaintiffs. Fogarty

v. Boles, 121 F.3d 886, 887 (3d Cir. 1997).

       On September 15, 1995, B.M.’s Child Study Team (“CST”) held an open house.



4
        The District Court also granted summary judgment for Defendants on claims under
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiffs did not raise
this issue in their brief, so we do not address it on appeal.

                                              9
The CST members stayed in one room, called a “resource room,” and teachers stopped in

during their free periods to discuss the CST’s students and their Individualized Education

Plans. The room had a table full of refreshments. As he usually did, B.M. entered the

room that morning and dropped off his belongings. He asked a teacher in the room if he

could take an item from the refreshment table. She said yes, but he did not take anything

at that time. Around lunchtime, B.M. returned and took a brownie from the refreshment

table. Carol Riegel jumped up and grabbed B.M.’s arm with one hand, using the other to

pry the brownie from B.M.’s hand and set it back on the table. After the incident, B.M.

cursed and left the room. He sustained no physical injuries, and did not visit the school

nurse. A1303-04. He later explained that he was angry not because of the event itself,

but because he could not retaliate without suffering severe consequences. A1306-07.

       In a 42 U.S.C. § 1983 suit for retaliation under the First Amendment, a plaintiff

must show: (1) that he was engaged in protected activity; (2) that the government

responded with retaliation; and (3) that the protected activity was the cause of the

retaliation. Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2002). Defendants

object on each element, but their causation argument is most persuasive.

       Summary judgment was proper because Plaintiffs failed to raise a genuine issue as

to whether there is a causal connection between B.M.’s lawsuit and the brownie incident.

See Robinson v. Pittsburgh, 120 F.3d 1286, 1302 n.16 (1997). Riegel appears to have

taken the brownie from B.M.’s hand because she thought he was breaking the rules, not



                                             10
because “she was furious that this litigation had achieved what she had lobbied against

when she conspired with Christiano and Simon to make sure that her report would

continue to be available for use in planning B.M.’s education.” Plaintiff’s Brief at 54.

The three-month gap between the filing of a complaint and the incident is not so close as

to be unusually suggestive of retaliatory motive, especially since such an obvious and

unimpeached non-retaliatory motive exists. Krouse v. Am. Sterilizer Co., 126 F.3d 494,

504 (3d Cir. 1997) (internal quotations and citations omitted).

                                               B.

       Plaintiffs also claim that the District Court erred in granting summary judgment for

the Defendants on their substantive Due Process claims. First, Plaintiffs allege a violation

of their constitutional right to privacy when C.M.’s and R.M.’s addresses, ages,

occupations, and educational histories were included on B.M.’s school records, which

were disseminated to various parties related to the ongoing litigation. Citing Nixon v.

Adm’r of GSA, they claim that “[i]f a plaintiff has a reasonable expectation of privacy,

the Constitution protects against the disclosure of this information.” 433 U.S. 425, 458

(1977).

       All of the cases Plaintiffs cite are inapposite. Nixon, for example, held that the

former President’s right to privacy was not violated by a statute that required preservation

of certain Presidential materials. To the extent that this case is relevant, it actually cuts

against Plaintiffs, because it allowed archivists to screen the Presidential materials to



                                              11
separate and give back those materials that were entirely private. See id. at 455-65.

Another case cited by Plaintiffs, Whalen v. Roe, 429 U.S. 589 (1977), also militates

against their position. Whalen sustained the constitutionality of a New York statute

requiring a database containing the name, address, and age of every person who obtained

prescription drugs for which there were both lawful and unlawful markets. Although the

database could be accessed by certain health department and investigatory personnel, the

Court found that it did not amount to “an invasion of any right or liberty protected by the

Fourteenth Amendment.” Id. at 605. No case cited by the Plaintiffs even approaches the

proposition that the Constitution is offended by disclosure of parents’ occupations or

educational histories to court reporters, insurers, attorneys, and expert witnesses during

the course of litigation.

       Moreover, the IDEA, which Plaintiffs claim “provide[s] a basis for an expectation

of privacy in school records,” does not require that this kind of parental information

should be kept confidential in this context. Indeed, it specifically exempts from its

confidentiality requirements “the student’s name, address, telephone listing, date and

place of birth, major field of study, dates of attendance, degrees and awards received, and

the most recent previous educational agency or institution attended by the student.” See

20 U.S.C. § 1417(c) (directing the Secretary of Education to comply with 20 U.S.C. §

1232g); 20 U.S.C. § 1232g(A)(5)(A) (defining “directory information” exempt from

confidentiality requirements). Nowhere does the IDEA state that parental “directory



                                             12
information” should be confidential. In fact, the only parental information the IDEA

protects is financial records. See id. § 1232g(a)(1)(C).

       Plaintiffs also challenge disclosure of B.M.’s school records, including his

psychological reports, to the Department of Education Office for Civil Rights (“OCR”),

defendants’ insurance carrier, prospective counsel, defendants’ expert, and the

psychiatrist (Martin Mayer) engaged to evaluate B.M. For the following reasons, we

believe these disclosures did not breach the confidentiality of B.M.’s records and did not

violate his right to privacy.

       C.M. filed a complaint with the OCR in 1993 alleging that the school district

discriminates on the basis of disability. Defendant Merachnik disclosed B.M.’s records

to the OCR only after it requested them in a letter citing federal regulations requiring that

the OCR be provided with all pertinent documents. See Defendants’ Supplemental

Appendix (“DA”) at 88-90; see also 34 C.F.R. § 100.6(c); 34 C.F.R. § 104.61.

Disclosures to the OCR were thus clearly authorized under 20 U.S.C. § 1232g(b)(3),

which provides that FERPA’s confidentiality provisions, incorporated by IDEA, do not

preclude access to student records necessary to enforce federal law. See also 34 C.F.R.

§ 99.31(1)(3)(iii).

       Second, Petitioners challenge disclosures to Livingston’s insurer. But the

insurance carrier was entitled to legal documents, including attachments, pursuant to the

terms of its insurance agreement with Livingston. See DA3. And it is well-established



                                             13
that insured parties stand in a special relationship with their insurers, who as real parties

of interest, are entitled to access documents on which their liability may turn. See Gray v.

Comm. Union Ins. Co., 468 A.2d 721, 725 (N.J. App. Div. 1983).

       Third, Petitioners claim that defendant John Christiano improperly provided

confidential documents to an attorney from whom he sought possible legal representation.

But Christiano did not have to wait until he formally engaged an attorney before he

shared documents critical to his case; otherwise, neither he nor the lawyer could make an

informed decision regarding representation. See In re Bevill, Bresler & Schulman Asset

Manag. Corp., 805 F.2d 120, 124 n.1 (3d Cir. 1986).

       Fourth, Petitioners challenge Livingston’s disclosure of B.M.’s records to its

expert. However, because experts function as agents of counsel and are themselves

bound by a duty not to disseminate confidential documents they receive in that capacity,

disclosure to experts does not constitute a breach of confidentiality or privacy. See State

v. Davis, 561 A.2d 1082, 1092 (N.J. 1989).

       Finally, disclosures to Dr. Mayer were permissible because IDEA specifically

provides that “individuals who have knowledge or special expertise” and certain

“qualified professionals” may participate in the evaluation of disabled children. 20

U.S.C. § 1414(d)(1)(B); 20 U.S.C. § 1414(c)(1). It is implausible that Congress intended

to restrict those individuals’ access to children’s school reports. Corollary New Jersey

state regulations similarly contemplate access by professionals involved in developing a



                                              14
disabled child’s IEP. See N.J.A.C. 6A:14-2.3(i)(1)(vi). Accordingly, defendants’

disclosures to Mayer were not improper.

       In sum, though his parents have defended the confidentiality of B.M.’s records

with the avowed purpose of protecting his post-secondary educational opportunities, no

confidential records were released to any individual or entity that could jeopardize B.M.’s

educational or other interests. All those given access were entitled to it.

       Plaintiffs’ second substantive Due Process claim – that they lost the right to

educate their child as they saw fit – merits little discussion. Contrary to Plaintiffs’

assertions, the violations alleged in this case do not implicate the right to send one’s child

to a competent nonpublic school, see Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925), the

right to study a foreign language, see Meyer v. Nebraska, 262 U.S. 390 (1923), or a

patient’s right to refuse unwanted medical treatment. See White v. Napoleon, 897 F.2d

103, 114 (3d Cir. 1990). Because Plaintiffs have not offered a single precedent in support

of their argument, the District Court properly found that they did not raise an issue of

material fact as to whether they were denied the right to educate their child as they see fit.

                                              C.

       Plaintiffs next argue that the District Court’s Order aimed at preserving the

confidentiality of B.M.’s records constituted an abuse of discretion. The Court ordered

that Stephen Edelstein, counsel for defendants,

       collect all of B.M.’s school records . . . [and] hold these records in his office
       in a locked and secure location which is accessible only to him, until the


                                              15
       termination of this matter or the further Order of this Court, at which time
       the records and any copies thereof shall be disposed of in accordance with
       this Court’s Order.

A36. It further required Edelstein to obtain any of B.M.’s records that were in the

possession of insurance carriers. Id.

       Plaintiffs argue that this ruling was an abuse of discretion because it was both too

broad and too narrow. First, they fault the District Court for requiring Edelstein to

“destroy all of B.M.’s pupil records at the end of this case.” Plaintiffs’ Brief at 59. But

the Order does not mandate destruction. It merely states that B.M.’s records should be

collected in one location until the end of litigation, pending further direction from the

Court. Second, Plaintiffs argue that “[t]he Court should only have ordered the challenged

records to be expunged and the remainder of his records returned to his school district.”

Id. This request is puzzling, since B.M.’s school district was dissolved in 1997. Even if

the records could be returned to the defunct district, Plaintiffs have not demonstrated why

they should be able to redact records merely because they have challenged them, before

any court has determined that they are legally flawed.5 The District Court’s Order was

not an abuse of discretion.

                                             D.

       In an October 4, 1999 Order, a Magistrate Judge in this case refused to allow



5
      As explained above in Part I, Plaintiffs will have an opportunity on remand to
show that redaction or expungement of certain records is “appropriate relief” under the
IDEA and § 1983.

                                             16
Plaintiffs to subject certain Defendants to additional interrogatories and depositions well

after the original discovery deadline had passed. The Judge did permit three

interrogatories which he felt were representative of the rest. DA115. He authorized

future discovery if the fruits of the three interrogatories justified it. Id. Far from being an

abuse of discretion, this ruling sensibly balanced the competing interests of justice and

efficiency in light of the protracted discovery that had already taken place in this case.

See Lloyd v. Hovensa, LLC., 369 F.3d 263, 274-75 (3d Cir. 2004); Brumfield v. Sanders,

232 F.3d 376, 379-80 (3d Cir. 2000).

                                                 III.

       For the foregoing reasons, we affirm the ruling of the District Court with respect to

all claims except Plaintiffs’ pleas for declaratory and injunctive relief under the IDEA.

The District Court’s holding with respect to those claims is vacated, and the matter is

remanded for further consideration. The District Court should also review the need for

additional discovery in light of this opinion.




C.M. v. BOARD OF EDUCATION – No. 04-1407

STAPLETON, Circuit Judge, concurring and dissenting:




       I am able to join most,6 but not all, of the Court’s opinion. I would remand with


6
 In particular, I agree that we should affirm the District Court’s resolution of all of plaintiffs’
constitutional claims, their privacy claims based on statutory grounds, and their claims arising

                                                  17
instructions that the District Court should promptly try plaintiffs’ First Cause of Action

and determine whether they are entitled to declaratory, injunctive, or damage relief,

together with attorneys’ fees and costs, on that claim.

       This controversy originated over twelve years ago, and this suit will soon have its

tenth anniversary. It appears to me that in part because of the adversarial stance of the

parties over all of those years and the efforts of the plaintiffs to convert a relatively

straightforward claim into a cause celebre, the parties and the District Court have lost

sight of plaintiffs’ original and primary claim. Because that claim may have merit, may

entitle plaintiffs to important relief, and, yet, has never been adjudicated, I would remand

and direct that expedited attention be given to it.

       Section 1414(b)(3)(B) of the IDEA provides that “[e]ach local educational agency

shall ensure that . . . any standardized tests that are given to the child . . . have been

validated for the specific purpose for which they are used.” 20 U.S.C. § 1414(b)(3)(B).

Section 1415(b) gives a parent a right to “prior notice” whenever the agency proposes to

initiate or change the evaluation of the child, which under § 1415(c) must include a

description of each evaluation procedure or test. Section 1415(b)(6) provides that parents

must be able to file a formal complaint “with respect to any matter relating to the . . .

evaluation of the child,” which necessarily includes the right to complain about not


out of the alleged disclosure of B.M.’s records to attorneys, insurers, experts and Dr. Mayer. I
also agree that the District Court erred in dismissing plaintiffs’ First and Fifth Causes of Action
as moot and in giving collateral effect to an administrative determination that was not subject to
judicial review because of that mootness ruling.

                                                18
receiving appropriate notice or the giving of a test that was not validated. If the parent is

not satisfied with the response to the complaint, access to an administrative process is

provided, see § 1415(f) and (g). And finally, under § 1415(i)(2)(A), “any party aggrieved

by the findings and decision [in the administrative process] shall have the right to bring a

civil action with respect to the complaint” in a state or federal District court, and the court

is to grant “such relief as [it] determines to be appropriate.” While it must give “due

weight” to the administrators’ proceedings, it must accept additional evidence and make

an independent decision based on “the preponderance of the evidence.”

       In this case, B.M.’s parents filed a complaint with the school about invalid and

unreliable testing and lack of proper parental notice that, along with other procedural

violations of IDEA, allegedly produced an evaluation of B.M. which was inaccurate,

misleading and damaging to him. They sought expungement of that evaluation, which

was denied by the defendants. They proceeded through the administrative process and

were ultimately denied relief. The parents then filed this suit in the District Court asking

it, inter alia, expunge the harmful record.

       The plaintiffs’ “First Cause of Action” asks the District Court to review the

administrative proceedings and grant the appropriate relief there denied. It spells out the

various procedural violations of the IDEA that had produced the allegedly misleading

evaluation of B.M. and then alleges as follows:

             84. B.M. is expected to enter college under admission procedures
       developed for special education students. The procedures typically require


                                              19
       submission of a school psychologist’s report, as indicated in written
       material provided to the student by his guidance counselor at GL, Mrs.
       Menk, and as corroborated in other sources.
               85. If the Board is not enjoined from disclosing the challenged
       records in B.M.’s file to potential post-secondary education programs in
       which B.M. seeks to enroll, he will be effectively foreclosed from applying
       to those programs. B.M. will be irreparably damaged by his inability to
       pursue post-secondary education and the concomitant emotional distress.
               86. As a result of the district’s failure to follow state and federal
       regulations regarding evaluations, C.M. and R.M. cannot agree to any
       further evaluations by the district and are forced to incur expenses in having
       the psychological and educational evaluations required for college
       admissions to programs for the learning disabled done privately.
               87. B.M.’s educational records must be maintained after graduation
       so that he can document his need for accommodations in post-secondary
       education and the work place under § 504. Because the records sought to
       be expunged provide harmful and inaccurate information, B.M. will be
       irreparably harmed by their disclosure to post-secondary programs and
       employees if the Board is not enjoined from disclosing the challenged
       records to said programs and employees.
               88. The evaluations written by Ms. Riegel and Dr. Mayer which
       were relied upon by the CST caused the CST to provide an improper
       program for B.M. As a result of this improper program the parents were
       forced to challenge the IEP developed by the CST resulting in legal and
       expert fees. Plaintiffs have been harmed, because they have not received
       reimbursement of attorney’s fees and related costs for over a year since
       these costs have been expended. Plaintiffs seek unreimbursed fees and
       costs, including pre- and post-judgment interest if accrued.

A.985-86.

       This Count asks the District Court to declare that “if the defendant Board is not

enjoined from disclosing the challenged records to post-secondary programs in which

B.M. intends to enroll or [to] potential employers, B.M. will suffer irreparable harm.”

A.988. In addition to compensatory and punitive damages, Count One asks the District

Court to enter an injunction (a) “[d]irecting the . . . Board to expunge the [challenged]


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records,” (b) “[d]irecting that no party communicate information relating to the

challenged material including the release of any document which references the

challenged reports,” and (c) “[d]irecting that any document which incorporates any

portion of the expunged record be retrieved. . . .”. A.988.

        In an opinion dated December 19, 2002, the District Court, while acknowledging

that the IDEA “clearly grants parents specific procedural rights which they may enforce

in administrative proceedings as well as in federal court,” A.47, dismissed plaintiffs’ First

Cause of Action as moot, explaining:

               There is no live case or controversy before the Court. B.M. has
        graduated from high school. B.M. did not suffer any harm as a result of any
        of Defendants’ alleged violations, and is not seeking compensatory
        education or other ongoing relief. The Court recognizes that Plaintiffs are
        concerned about the dissemination of an allegedly flawed evaluation, but
        the Court remedied this issue at oral argument with an order that all copies
        of B.M.’s evaluation that had been disseminated were to be collected and
        retained in one central location and no further dissemination should occur.
        There is no potential harm to Plaintiffs from the dissemination of the
        evaluation as all copies have been contained.

A.48.

        The order referred to by the District Court, entered on December 17, 2002,

directed that efforts be made to trace and retrieve any of B.M.’s records no longer held by

the school and ordered that B.M.’s records be held by defense counsel “in his office in a

locked and secure location which is only accessible to him, until the termination of this

matter or the further Order of this Court, at which time the records and any copies thereof




                                             21
shall be disposed of in accordance with this Court’s Order. . .” A.36.7 The District Court

terminated this case by dismissing the last of the plaintiffs’ claims on January 13, 2004. It

gave no instructions with respect to the expungement or disposition of the challenged

documents. Nor does anyone claim that it has done so since.

       In addition to dismissing plaintiffs’ First Cause of Action as moot, the District

Court’s December 19, 2002, opinion disposed of all of plaintiffs’ claims with the

exception of the claims included in its “Fourth Cause of Action.” 8 These claims were

based on § 1983 and alleged constitutional violations. See A.52-53. Following a motion

for clarification of its order implementing the December 19, 2002, opinion, the District

Court entered an order providing in part as follows:

              ORDERED that the remaining claims against Defendants are as
       follows: (1) U.S.C. § 1983 claims against Defendant Union County School
       District and Defendants Merachnik, Christiano, Hanigan, Imbriaco, Mayer
       and Riegel in their official capacities, but not as to punitive damages; (2) a
       42 U.S.C. § 1983 claim against Defendant Riegel in her individual capacity;
       (3) Defendant Laurie Neurodevelopmental remains in the case to the extent
       that LNI might be liable to Plaintiffs for attorneys’ fees if the Court were to
       find that attorneys’ fees should be awarded.


7
 Like my colleagues, I find no abuse of discretion in the entry of this order. It was a reasonable
temporary measure, but it did not adjudicate plaintiffs’ First Cause of Action.
8
 In the December 19, 2002, opinion, summary judgment was granted to the defendants on Count
Two, a claim under § 504 of the Rehabilitation Act, because “[p]laintiffs are unable to produce
any evidence to convince this Court that B.M. was excluded from participation in, denied the
benefits of, or subject to discrimination at school. . . .” A.50. Summary judgment was also
granted on Count Three based on the doctrine of law of the case. With respect to Count Four,
plaintiffs’ First Amendment claim was found to be “completely without merit,” as was their Due
Process claim based on the “Brownie” incident. A. 52-53. Count Five, a parallel to Count One
based on state law, was dismissed as moot. Thus, the only claims surviving were Count Four §
1983 claims based on alleged constitutional violations. A.52-53.

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A. 63-64. Given the text of the December 19, 2002, opinion, this order can only be read

as preserving only Count Four § 1983 constitutional claims. See fn.2, supra. It

necessarily follows that plaintiffs’ First Cause of Action and the IDEA violations there

alleged were not before the Court at the time of the subsequent trial.9 This means that

plaintiffs have never been called upon to come forth with their evidence supporting

liability and relief on their First Cause of Action.10

       The Court today expressly and correctly holds that plaintiffs’ First Cause of Action

is not moot and that plaintiffs may be entitled to declaratory and injunctive relief on that

claim. Moreover, I am confident that my colleagues would find the plaintiffs entitled to

attorneys’ fees and costs should they be successful in obtaining such relief. 20 U.S.C. §




9
 In its opinion following trial, the District Court stressed that it had previously “dismissed all of
Plaintiffs’ claims pursuant to the IDEA and the Rehabilitation Act” and, accordingly, “Plaintiffs
[had] no means by which to overturn the Office of Administrative Law decision.” A.77. The
District Court’s ultimate conclusion with respect to the claims that were tried was: “In order to
establish a claim under § 1983, a plaintiff must establish that [his] constitutional rights have been
violated, which Plaintiffs utterly fail to do.” A.78.
10
  C.M. was asked at trial what “harm” had resulted from the report containing the allegedly false
evaluation of B.M. In response, she testified about the pre-litigation “out of pocket” expenses
she and her husband had incurred in attempting to get the defendant to expunge the misleading
and harmful report, mentioning in addition to attorneys’ fees “costs for transcripts” of the
administrative hearing, “library copying costs,” the “cost for obtaining the records from the
Office of Civil Rights.” She also spoke of the cost of consultations with Dr. Schneider, an
expert. It is unclear whether Dr. Schneider was engaged as a witness or to provide the accurate
psychological and educational evaluations required for college admission which should have
been provided by the school. More important, C.M. testified, was the fact that because of
concern about the education B.M. was getting, B.M. and his parents attempted to have B.M.
moved to a different school but were unsuccessful in doing so because any new school would
insist on receiving the file including the misleading report before accepting a student like B.M.
with special needs.

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1415(i)(3)(B). The Court’s opinion further acknowledges that “we have held that in a §

1983 action to enforce IDEA, . . . compensatory damages are available to remedy IDEA

violations” so long as that remedy is “appropriate” within the meaning of the Act. Op. at

___ (quoting from W.B. v. Matula, 67 F.3d 484 (3d Cir. 1999)). Surprisingly, however,

they preclude any damage recovery here. The IDEA violations at issue in Matula when it

found compensatory damages “appropriate” were procedural ones indistinguishable from

those here alleged,11 and I am at a loss to understand why my colleagues have ruled out

the possibility of a damage recovery in this matter.12 If it is true, for example, that B.M.’s

parents have had to pay for valid evaluations of B.M. which the school was required by

the IDEA to provide in order to permit an assessment of his special needs, I would hold




11
 The Matula court described the plaintiffs’ IDEA allegations as follows:
              Specifically, plaintiffs allege that defendants violated IDEA by (1) failing
      to inform them of their statutory rights; (2) failing to refer E.J. for evaluation from
      September 1991 until February 1992; (3) failing to advise W.B. in writing of its
      refusal; to evaluate E.J. prior to February 1992; (4) conducting only a limited
      evaluation of E.J. in April 1992; (5) refusing to develop an IEP until April 1993,
      in the wrongful belief that E.J.’s academic performance disqualified him for IDEA
      services; (6) withholding from W.B. evaluation results indicating E.J. may be
      neurologically impaired; and (7) conditioning the commencement if occupational
      therapy for E.J. on settlement of W.B.’s due process petitions and refusing to
      provide those services until January 1993.
Matula, 67 F.3d at 500.
12
  My colleagues apparently find dispositive the District Court’s finding that plaintiffs were
“unable to produce any evidence . . . that B.M. was excluded from participation in, denied the
benefits of, or subject to discrimination at school.” A.50. This was the court’s disposition of the
FERPA claim that constituted plaintiffs’ Second Cause of Action,” which is not before us.
FERPA requires such a showing. It does not follow, however, that compensatory damages are
not available where substantial harm results from violations of the specific procedural
requirements of IDEA. Indeed, Matula teaches to the contrary.

                                                24
that a compensatory damage remedy was appropriate. Such harm would, in my judgment,

be neither “purely speculative” nor “de minimis.” Op. at 8.

       I would not rule out the possibility that when the facts are fully developed one or

more of the individual defendants will be entitled to qualified immunity. However,

plaintiffs allege violations of statutory and regulatory procedural requirements that are

mandatory, “clear and specific.” P.N. v. Greco, 282 F. Supp. 2d. 221, 240 (D.N.J. 2003)

(finding immunity unavailable where “clear and specific” mandates of IDEA were

alleged). Accordingly, a disposition at this time of plaintiffs’ First Cause of Action

against the individual defendants in their individual capacity on qualified immunity

grounds would be premature.

       I would remand for a prompt trial of plaintiffs’ First Cause of Action, asking the

District Court to reevaluate the need for further discovery in light of this Court’s opinion.




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