Wednesday, February 29, 2012

D.N.J. Issues Ridiculous Title II/504 Standing Decision

Last week, Judge Joel Pisano of the United States District Court for the District of New Jersey issued an opinion granting summary judgment to the defendants in A.E. v. Freehold Regional High School District Board of Education, 2012 WL 603810 (D.N.J., Feb. 22, 2012).  The facts of the case are pretty straightforward.  In 2009, Freehold High School taught a class on child development.  To provide its students experiential learning in conjunction with that class, Freehold High School ran a part-time preschool for 3- and 4-year-olds.  N.E. was a 3-year-old who was accepted into the preschool but who was then told he could not attend once Freehold learned he had a peanut allergy.  N.E.'s mother sued Freehold on his behalf and claimed that the exclusion violated the ADA, the Rehabilitation Act, and the New Jersey Law Against Discrimination.

In its summary judgment opinion last week, the district court held that the claim was moot, because Freehold had eliminated the child development and preschool program before N.E.'s mother brought suit.  Perhaps anticipating this problem, N.E.'s mother's complaint sought damages for her son's exclusion from the preschool program.  As the Supreme Court has held time and again, a suit for damages presents a live controversy, even if a claim for forward-looking injunctive relief is moot.  But the district court held that N.E. and her son had "no cognizable claim for damages."  Here's the court's complete analysis of that question:
During oral argument, Plaintiff identified compensatory damages of $1,200. According to Plaintiff, that cost represents the tuition charged by a daycare center where N.E. enrolled in during a period of the fall of 2009. Yet a full time daycare is not a substitute for the free Child Development Lab that operated only several hours a day and only three days a week. In other words, this is not a case where a child was denied participation or accommodation in mandatory free public education forcing him to seek an alternative. Indeed, Plaintiff conceded during oral argument that the school district was never under a duty to admit or allow N.E to participate in the Child Development Lab. See N.J. Stat Ann. 18A:38–1. Therefore, as a matter of law, Plaintiff did not suffer any compensable money damages when unable to participate.
At most, what this suggests is that the proper measure of out-of-pocket damages was not $1,200 but something less.  But surely there are economic damages when a child is denied access to a free preschool program -- even if it's only a part-time program.  Had N.E. been admitted to Freehold's preschool -- as, the summary judgment record indicates, he would have but for his allergy -- his mother would not have had to find an alternative way to provide him child care during the hours that the preschool was in operation.  It also wouldn't be surprising if there were significant noneconomic damages as well.  That Freehold was not required to provide a preschool program at all or accept any given student into its preschool is irrelevant.  What the law prohibits is discrimination against individuals with disabilities.  Once Freehold decides to set up a preschool program, it can choose students for lots of reasons -- but not for discriminatory ones.  And discrimination, at least so far as the summary judgment record is concerned, is what N.E. established.

I know this is a small-money case, but this kind of slapdash standing ruling is all too common in knocking people with disabilities out of court.  For principle and precedent alone, I would think an appeal would be warranted.



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