Hornstine v. Township of MoorestownHornstine v. Township of Moorestown
OPINION
J. INTRODUCTION
Plaintiff Blair Hornstine, a special needs high school senior, seeks the protection of
Given that this case has generated a firestorm of controversy, it is important to emphasize at the outset what this case is not about. First, it is not about whether plaintiff is disabled; that is undisputed by defendants. Second, it is not about the appropriateness of the accommodations plaintiff received through her IEP; she was afforded these accommodations by the Board to level the academic playing field for her, and in fact, her achievements are a model example of a successful IDEA program. This case is about an outstanding student who overcame the hardships of her disability to achieve the best grades in her class, and who is now in danger of having her accomplishments tarnished by her own school’s administrators in the name of rectifying an imagined injustice. The record on this application for a TRO makes clear that the Board and Superintendent Paul Kadri (“Kadri”), in particular, apparently propelled by parental and community pressure, have sought to appease these uninformed interests by changing the rules. In so doing, they have embarked on a course to denigrate plaintiffs remarkable achievements as a special needs student, and thus, dimmish the recognition due to her, by criticizing the accommodations which these same defendants approved and never challenged. This unfortunate set of circumstances leads me to issue the following opinion.
II. FACTS AND PROCEDURAL HISTORY
Plaintiff Blair Hornstine is an exceptional student. After seven semesters in Moorestown High School, she has achieved the highest weighted grade point average in her class: 4.6894. Her high school transcript shows a remarkable 23 A+’s, 9 A’s, 1 A-, and, nothing lower. More than two-thirds of her classes were Advanced Placement (“AP”) or Honors, which are by definition more intense than regular classes. She scored a 1570 out of a possible 1600 on her Scholastic Aptitude Test, and will attend Harvard University in the fall of 2003.
Plaintiff has earned these achievements in spite of the undisputed fact that she suffers from a physical disability. Because of this disability, the Board developed an IEP for her, as required by the IDEA, 20 U.S.G. §§ 1400 — 1491. See Complaint at ¶ 3. As part of her IEP, the Board granted her permission to participate in a hybrid program that allows her to attend morning classes and receive the remainder of her instruction at home from Board staff members. Id. It is undisputed that plaintiff needed this accommodation because her health problems caused “substantial fatigue” which rendered her unable to “attend [and] participate through a full school day.” Certification of Paul J. Kadri (“Ka-dri Cert.”), Exhibit D at page 4.
However, Superintendent Kadri has initiated an effort to change the Board policy to allow for multiple valedictorians and salutatorians. Kadri Cert. at ¶¶ 25-35. According to Kadri, in the fall of 2002 — his first semester as superintendent — he was approached by “parents, students, and other community members” expressing concern that “students were not provided equal opportunities to earn the awards” because plaintiff was granted “accommodations ... in a disparate manner.” See id. at ¶ 7. Kadri also alleges that he was told that plaintiffs father intended to manipulate the special education laws to ensure that his daughter became valedictorian. Id. at 11¶ 8-9.
On September 19, 2002, Kadri met with plaintiffs father, Louis Hornstine. Kadri and Mr. Hornstine have very different recollections of this meeting. Compare Kadri Cert. at ¶¶ 10-24 with Louis Hornstine’s Certification (“L. Hornstine Cert.”), Plaintiffs Reply at Exhibit H, ¶¶ 12-24. Kadri portrays Mr. Hornstine as an overzealous parent bent on manipulating the system to ensure that his daughter does not suffer “the same embarrassment” he suffered when he was merely the salutatorian of his graduating class. Kadri Cert. at ¶ 14. Mr. Hornstine disputes most of Kadri’s account of the meeting, stating, for example, that he was not salutatorian of his class, since his “class rank was never that high.” L. Hornstine Cert, at ¶ 19. Plaintiff offers the certification of Assistant Superintendent Judithann Keefe, who was also present at the meeting, in support of Mr. Hornstine’s account. Certification of Judithann C. Keefe, Ed.D. (“Keefe Cert.”).
However, the Court will not involve itself in the apparent quarrel between Mr. Kadri and Mr. Hornstine because it is not relevant to this case. It is undisputed that Mr. Hornstine could not affect his daughter’s curriculum in any way without the express authority of the School Board.
See Lascari v. Bd. of Ed. of Ramapo Indian Hills Regional High Schl. Dist.,
In any event, in the fall of 2002, Kadri began an “investigatfion]” into plaintiffs disabled status and attendant course load. Kadri Cert, at ¶ 25. On November 20, 2002, Kadri was present at a meeting with plaintiff, her IEP team, and her parents. Complaint at ¶ 9. Plaintiffs treating physician and the IEP team agreed that due to her medical condition at the time, a reduction in the number of her courses was necessary.
Id.
at ¶ 8. Yet Kadri ordered that the school physician review plaintiffs medical condition.
Id.
at ¶ 9. The school physician agreed that a “reduction in course load is medically appropriate due to her exhaustion and overextending herself this year.”
Id.
at Exhibit A. Kadri, however, refused to allow plaintiff to drop a class. She instead withdrew from AP European History and enrolled in Honors Contemporary U.S. History.
See
L.
In the fall of 2002 and early 2003, Kadri held impromptu meetings with the Board attorney, the Child Study Team, and supervisors within the school system to discuss plaintiffs IEP and disability status, G.P.A., and valedictorian status. Complaint at ¶ 12. In December 2002, the Board contacted plaintiffs home instructors to “validate and verify” her educational curriculum. Id. at ¶ 13; Steven Grill’s Certification (“Grill Cert.”), Plaintiffs Reply at Exhibit B, ¶ 9; John O’Neill’s Certification (“O’Neill Cert.”), Plaintiffs Reply at Exhibit E, ¶ 7. Plaintiff alleges, and one of her home instructors certifies, that the Board did not inquire into the curricula of other home-schooled students. Complaint at ¶ 13; O’Neill Cert, at ¶ 8.
Moreover, Kadri has made his desire to award multiple valedictorians public knowledge among plaintiffs classmates. In January 2003, at a dinner meeting with the school’s class officers, he discussed the possibility of declaring multiple valedictorians. Furthermore, in late February 2003, he addressed the same issue to an assembly of the entire senior class, while plaintiff was present. Complaint at ¶¶ 14,17.
In the last few weeks, Kadri has placed a proposal before the Board that its policy be amended to allow for multiple valedictorians. Kadri Cert, at ¶ 35. The proposed amendment to the policy reads:
In determining the recipients of [the awards of valedictorian and salutatorian], the Board may review the program of study, manner of instruction, and other relevant issues, and in its discretion, with the assistance of the administration, may designate multiple valedictorians and/or salutatorians to ensure that all students have an equal opportunity to compete for these awards.
Id. That amendment received a public reading on May 1, 2003, and, while the Board was not scheduled to vote on the proposal until May 12, Kadri sent a letter on May 6 to K.M., the non-disabled classmate who defendants apparently wish to name as valedictorian along with, or instead of, plaintiff, informing him that he “certainly will be considered for the valedictorian award.” K.M.’s Motion to Intervene at Exhibit A. While K.M. is an extremely gifted student, it is undisputed that his weighted G.P.A. at the end of the seventh semester was lower than that of plaintiff. 1 Moreover, despite plaintiffs higher weighted G.P.A., Kadri did not send her a similar letter informing her that she will be considered for the valedictorian award.
Kadri does not disguise the fact that the proposed policy amendment to award multiple valedictorians is directed at plaintiff. In his certification, he avers that the current policy of awarding the student with the highest weighted G.P.A. the title of valedictorian is unfair as applied to plaintiffs graduating class because other students “were not afforded the accommodations which [p]laintiff enjoyed.”
Id.
at ¶34. Specifically, Kadri contends that “[pjlaintiff was able to earn more ‘weighted’ grades” than her “regular education peers” because of the “availability of many AP courses in her home instruction program, and she was also able to secure higher grades in her home instruction classes than students enrolled in the same courses at Moorestown High School.”
Id.
at ¶ 32, 26. Kadri questions the experience of plaintiffs AP home instructors, and contends that the home instructors “did not confer with Moorestown High School AP teachers regarding grading or implement the same grading system.”
Id.
at ¶ 29. He further claims that, on occasion, when plaintiff realized she would not
Plaintiff strongly disputes Kadri’s contentions. Before plaintiff was allowed to enroll in any home instruction course, the Board approved the curriculum of the course and the home instructor. See Plaintiffs IEP, Complaint at Exhibit A. Plaintiffs IEP specifically states that “standard grading practices will apply” and “grading in Home Instruction classes will be determined by the Home Instructor in conjunction with the regular class teachers.” Id.; L. Hornstine Cert, at ¶ 4. In fact, in one of plaintiffs home instruction courses, AP Calculus, she was required to take chapter tests graded by her home instructor as well as the same mid-term exam as her non-disabled classmates, graded by the in-school instructor. Connie Nothdurft’s Certification (“Nothdurft Cert.”), Plaintiffs Reply at Exhibit C, ¶¶ 5-10. Plaintiff received an A + on the in-school exam, and an A average on her home instructor’s tests. Her ■ home instructor stated in a certification that “[i]n retrospect, perhaps my grading is actually more rigorous than the school’s own” grading. Id. at ¶ 10.
With respect to Kadri’s allegation that plaintiff withdrew from in-school classes in order to protect her high G.P.A., plaintiff notes that she withdrew from two classes, with the school’s permission and, in both cases, withdrawing actually lowered her G.P.A. L. Hornstine Cert, at ¶ 2. For one of the classes from which she withdrew, the record contains evidence that the school’s own physician agreed with plaintiffs IEP team and treating physician that such a reduction in course load was medically necessary. Plaintiffs IEP, Complaint at Exhibit A. Similarly, plaintiff waived out of physical education because her physician determined it was necessary. See Kadri Cert, at ¶ 22.
Despite Kadri’s implication that plaintiffs father hand-picked her home instructors, Mr. Hornstine responds that the only teacher he referred was Mr. O’Neill, plaintiffs Latin teacher, because no Latin teacher at the school was willing to teach home-bound students. L. Hornstine Cert, at ¶ 6. The Board approved Mr. O’Neill’s appointment. Id. Furthermore, it is of no moment whether Mr. Hornstine had suggested one, several, or all of his daughter’s homebound instructors since the Board had the exclusive authority to approve and hire these instructors and did so in each case.
In addition, while Kadri claims that, unlike her “regular education peers,” plaintiff “could take as many AP or Honors courses as she wanted to,” plaintiff cites two examples of situations in which her special education status actually prevented her from taking AP or Honors courses. L. Hornst-ine Cert, at ¶ 10. The school would not allow her to receive home instruction for AP Biology because it could not provide for the lab component. Id. Similarly, the school could not find a suitable home instructor for Honors National Government, so plaintiff had to take the unweighted standard course “You and the Law.” 2 Id.
In a strained and relentless effort to further show that plaintiffs accommodations gave her an unfair advantage over her non-disabled classmates, Kadri submitted a late supplemental certification on May 7, 2003, one day before the TRO hearing. Paul J. Kadri’s Supplemental Certification (“Kadri Supp. Cert.”). Kadri makes numerous re-calculations of plaintiffs weighted G.P.A. to reflect hypothetical curricula for plaintiff had she been a non-disabled student and required to take an in-school curriculum. He even provides as an illustration a faux transcript for plaintiff (and assures the Court that the Board does not intend to submit the transcript to any college or university). Id. at ¶ 12 and Exhibit C. The end result of his series of conjectures is that plaintiffs recalculated G.P.A. would have been lower than K.M.’s — by five thousandths of a point. Id. at ¶¶ 12-13. The fact that Ka-dri’s speculative calculations, theoretical curricula, and hypothetical alternative transcript can produce only a .005 differ'ence between the top two students highlights the weakness of defendants’ position and the lengths to which Kadri is prepared to go to deny plaintiff sole valedictorian status to appease the Moorestown community. Furthermore, Kadri fails to mention the salient fact that, in reality, K.M., who was not afforded any of the accommodations given to plaintiff, nonetheless had a statistical advantage over her in terms of the weighted courses taken by both students.
In his continued effort to denigrate plaintiffs accomplishments, Kadri notes that he has “reviewed the transcripts of the past six valedictorians, and none of those students earned straight A+ grades, like Plaintiff received during her junior year.” Id. at ¶ 10. He is referring to plaintiffs junior year accomplishment of earning an A+ in all ten of her classes. Instead of applauding plaintiffs achievements, he insinuates that since no valedictorian in the past six years was able to achieve grades as high as plaintiff did in her junior year, then plaintiffs success must be due to some unfair advantage.
The Board and Superintendent Kadri have made clear that they have no intention of allowing plaintiff to be the sole valedictorian, even though she has earned the highest weighted G.P.A. after seven semesters. Worse yet, the fact that Kadri informed K.M. — and not plaintiff — that he was being considered for the award raises the possibility that the Board may not select plaintiff for the honor at all. Indeed, the proposed policy amendment is vague enough to allow the Board to avoid naming the student with the highest seventh semester weighted G.P.A. as one of the valedictorians. Perhaps with this possibility in mind, defense counsel at oral argument did not state on the record that
To prevent the Board from retroactively applying the proposed amendment, plaintiff filed an Application for Emergent Relief with the Director of the New Jersey Department of Education — Office of Special Education on April 17, 2003, seeking a due process hearing. Complaint at Exhibit F. By way of letter dated April 22, the Office of Special Education denied plaintiff a hearing for lack of jurisdiction. Id.
On May 1, 2003, plaintiff filed a verified complaint in this Court, seeking injunctive relief and money damages against the Township of Moorestown, 3 the Moorestown Board of Education, and Superintendent Kadri, for the following causes of action: invasion of privacy under the Family Education Rights and Privacy Act (“FERPA”), violation of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act of 1973, the New Jersey Law Against Discrimination (“NJLAD”), 42 U.S.C. § 1983, procedural and substantive due process rights, and denial of equal protection. Also on May 1, plaintiff filed an Order to Show Cause seeking a TRO enjoining defendants from naming multiple valedictorians, and defendants submitted their opposition.
On the same day, this Court scheduled a hearing for May 8 and permitted the parties to submit additional briefing. The parties submitted supplemental briefing and certifications. Defendants also filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on procedural grounds. Additionally, K.M. filed a motion to intervene and a motion for adjournment.
The Court held oral argument on May 8, at the close of which the Court read an oral opinion into the record, which granted KM.’s motion to intervene, denied KM.’s motion for adjournment, granted plaintiffs TRO, and denied defendants’ motion to dismiss. 4
III. DEFENDANTS’ MOTION TO DISMISS IS DENIED.
On May 5, 2003, defendants filed a motion to dismiss plaintiffs complaint in its entirety based upon alleged procedural deficiencies. Specifically, defendants maintain that: (i) this matter is the subject of a Tort Claims Notice and is barred by N.J.S.A. 59:8-8; (ii) since the Board had not taken final action, plaintiffs claims are not ripe for review because no justiciable case or controversy exists; (iii) plaintiff has failed to exhaust her administrative remedies; and (iv) pursuant to Fed. R. Civ. P. 19, plaintiff has failed to name an indispensable party. Before addressing the merits of defendants’ motion, I find that the intervention of KM. renders defendants’ contention that plaintiff has failed to name an indispensable party moot. I will now rule on the remainder of defendants’ motion to dismiss.
A. Plaintiff’s Constitutional Claims Are Not Barred by Their Inclusion in the Tort Claims Notice Filed by Plaintiff Pursuant to N.J.S.A. 59:8-8.
The New Jersey Tort Claims Act Against Public Entities does not bar plaintiff from going forward on her federal claims. The Tort Claims Act provides:
A claim relating to a cause of action for death or for injury or damage to a person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. After the expiration of six months from the date the notice ofclaim is received, the claimant may file suit in an appropriate court of law.
N. J.S.A. 59:8-8. On April 3, 2003, plaintiff served on the Board a Tort Claims Notice, pursuant to N.J.S.A. 59:8-7, asserting claims against Superintendent Kadri, both individually and in his official capacity, the Board, and the Moorestown School District. Kadri Cert, at Ex. C. Therein, plaintiff stated that:
Mr. Kadri and other members of the Board of Education ... made a concerted effort ... to violate the claimant’s legal rights under the following federal and state statutes and constitutional provisions among others: Family Educational Rights and Privacy Act, Individuals with Disabilities in Education Act, Civil Rights Act ... and the guarantees to procedural due process and equal protection of the laws of the Fourteenth Amendment to the United States Constitution.
Id. at p. 6. Plaintiff asserts damages in the amount of $2,700,000.00. Kadri Cert, at ¶ 36.
Defendants contend that plaintiff is barred from pursuing the instant action by virtue of the six month repose mandated by service of the Tort Claims Notice. Specifically, defendants maintain that the claims asserted in the instant action “mirror” the claims set forth in the Notice and, thus, are premature because plaintiff has faded to wait the statutorily-imposed six month period for investigation and preparation. Defendants assert that the instant action therefore should be dismissed.
While defendants acknowledge this district’s decision in
Peltack v. Borough of Manville,
Defendants’ reading of
Peltack
is erroneous. In
Peltack,
the plaintiff filed a Notice of Tort Claim, pursuant to N.J.S.A. 59:8-8, asserting violations of his constitutional right to due process.
Id.
at 772. Approximately two months later, when plaintiff filed a federal civil rights suit in the District of New Jersey, defendants moved to dismiss plaintiffs claim for failure to adhere to the six month repose mandated by the Tort Claims Act. Making clear that federal claims cannot be impaired by state statutory requirements, the court ruled that the six month period of repose does not attach to a federal civil rights suit, stating: “[t]o incorporate the procedural provisions of the state statute borrowed for one purpose would unduly infringe upon the assertion of federally created rights.”
Id.
at 773 (citing
Gipson v. Twp. of Bass River,
In addition, defendants failed to note the United States Supreme Court decision in
Felder v. Casey,
B. Justiciability
The exercise of judicial power depends upon the existence of a “case or controversy” under the United States Constitution Article III, Section 2.
DeFunis v. Odegaard,
1. The plaintiff must have suffered an injury in facb-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
2. There must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some party not before the court; and
3. It must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife,
In addition to standing, plaintiffs “case or controversy” must be ripe for adjudication.
Artway v. Attorney General of the State of N.J.,
At a Board meeting on May 1, 2003, there was a public reading of the proposed amendment to confer multiple awards, with a May 12 scheduled date for voting on the policy change. Additionally, plaintiff did not receive a letter similar to that sent by Kadri to K.M. on May 6, 2003. Albeit Kadri’s notice to K.M. is a transparent attempt to confer standing to intervene on this student, this correspondence also reflects that the Board is doing more than merely considering the proposed amendment. Rather, it intends to enact the new policy and apply it retroactively to the class of 2003, to the detriment of plaintiff. Moreover, at the hearing on this TRO application, defendants said nothing to contradict that conclusion. Thus, defen
C. Exhaustion of State Administrative Remedies
Defendants contend that plaintiffs claims should be dismissed for failure to exhaust state administrative remedies. Before discussing the substance of defendants’ argument, the Court notes that defendants did not adequately brief this issue in their opposition or supplemental papers. The Court will nonetheless thoroughly consider this issue out of respect for the state administrative forum and a desire for judicial comity.
The Commissioner of Education enjoys broad authority under N.J.S.A. 18A:6-9 to hear “all controversies and disputes arising under the school laws,” N.J.S.A. 18A:6-9;
see Balsley v. North Hunterdon Reg. Schl. Dist. Bd. of Ed.,
Both the plain language of N.J.S.A. 18A:6-9 and New Jersey case law compel
Rejection of defendants’ exhaustion argument is further grounded in case law governing federal claims brought by students entitled to protection under the IDEA. There are no state exhaustion requirements for actions brought under the ADA or Section 504 of the Rehabilitation Act, or under 42 U.S.C. § 1983 to enforce a federal constitutional claim.
See Jeremy H. v. Mount Lebanon Schl. Dist.,
The IDEA focuses on the appropriateness of the public education afforded special needs students whereas both the Rehabilitation Act and the ADA focus on disability-based discrimination against special needs students and are intended to reach “grosser kinds of misconduct” than the IDEA.
Timms v. Metrop. Schl. Dist. of Wabash Cty., Indiana,
Even if plaintiff should have exhausted state administrative remedies before instituting this suit, this case falls squarely within the futility exceptions to both New Jersey’s and the IDEA’S exhaustion requirements.
See Beth V. v. Carroll,
does not fall within the [Department’s] limited jurisdiction for due process hearings. Therefore, the request for due process cannot be processed because it does not seek a final determination concerning “identification, evaluation, reevaluation, classification, educational placement, the provision of a free, appropriate public education, or disciplinary action according to 34 C.F.R. §§ 300.520 through 300.528.” See, N.J.A.C. 6A:14-2.7(a).
Your discrimination claims pursuant to Section 504 of the Rehabilitation Act ... appear more appropriate for ... a civil action in a court of appropriate jurisdiction. Adjudication of such claims, and awarding of injunctive relief such as that sought in this matter, are not appropriate for a due process hearing.
Complaint at Exhibit F. This letter makes clear that a remand by this Court to the
For these reasons, defendants’ motion to dismiss on exhaustion grounds is denied.
IV. PLAINTIFF IS ENTITLED TO TEMPORARY RESTRAINTS
Having denied defendants’ motion to dismiss, I now turn to the merits of plaintiffs application for temporary restraints. Plaintiff petitioned this Court for a preliminary injunction enjoining the Board from discriminating against her based on her disability by adopting and retroactively applying to her the proposed amendment to the Board’s current valedictorian policy. While the Court does not have jurisdiction to enjoin the Board from modifying its policies, plaintiff properly contends that this Court has jurisdiction to enjoin the Board from retroactively applying this amendment to her because she is likely to succeed on her discrimination claims.
There are four factors a court must consider in deciding whether to issue an injunction:
1. Whether the movant has shown a reasonable probability of success on the merits;
2. “Whether the movant will be irreparably injured by denial of the relief;
3. “Whether granting the preliminary relief will result in even greater harm to the non-moving party; and
4. “Whether granting the preliminary relief will be in the public interest.
Tanimura & Antle, Inc. v. Packed Fresh Produce, Inc.,
Plaintiffs discrimination allegations are two-fold. First, plaintiff asserts that Superintendent Kadri’s disparate treatment of her on account of her disability constitutes disability-based discrimination prohibited by both Section 504 and the ADA, for which both Kadri and the Board may be held liable. Second, plaintiff asserts that the retroactive application of the amendment drafted by Kadri and proposed to the Board would constitute discrimination under the same Acts. 10 To protect against this potential harm, she seeks a preliminary injunction. Her request is granted for the following reasons.
Section 504 and the ADA “provide a coherent framework and consistent and enforceable standards for the elimination of discrimination against persons with disabilities.”
Guckenberger v. Boston Univ.,
No otherwise disabled qualified individual with a disability in the United States ... shall, solely by reason of his or her disability, be excluded from the participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....
20 U.S.C. § 794(a). In the education context, this language protects special needs students from being treated disparately on account of their disability.
See Weixel,
To establish a prima facie case under Section 504, a plaintiff must show that: (a) she is a handicapped individual; (b) she is otherwise qualified for participation in the program; (c) the program the plaintiff is challenging receives federal financial assistance; and (d) she was subjected to discrimination under the program solely on account of her disability.
Nathanson v. Med. College of Pennsylvania,
In
Alexander v. Choate,
The notion that a neutrally applicable rule does not constitute discrimination under Section 504 was further explored in
Timothy H. v. Cedar Rapids Comm. Schl. Dist.,
At first glance, these precedents might suggest that here the Board’s proposed amendment does not constitute discrimination under Section 504 because it appears to be neutrally applicable to all students. The proposed amendment neither directly references persons with disabilities nor accommodations made to them:
In determining the recipients of [the awards of valedictorian and salutatorian], the Board may review the program of study, manner of instruction, and other relevant issues, and in its discretion, with the assistance of the administration, may designate multiple valedictorians and/or salutatorians to ensure that all students have an equal opportunity to compete for these awards.
Kadri Cert, at ¶ 35. Plaintiffs challenge, however, is not as to the policy on its face, but as to the retroactive application of the policy to her. Indeed, the circumstances underlying the proposal to amend the Board policy as well as the formulation of the amendment, make clear that any application to her would be based on her disability.
Defendants do not contest that the proposed modification to the Board’s valedictorian policy is a direct result of complaints Kadri received from students and their parents that these students had not been “provided equal opportunities to earn the [valedictorian and salutatorian] awards, and that accommodations were provided, in a disparate manner, between students.” Kadri Cert, at ¶ 7. Furthermore, defendants admit that Kadri interpreted these comments to be directed toward plaintiff. Kadri Cert. ¶¶ 7-8. Kadri avers that, in response to these complaints, he conducted an investigation into plaintiffs educational experience and performance at Moorestown, which included reviewing plaintiffs transcript and comparing it to the transcripts of the three students whose weighted grade point averages most closely approached that of plaintiffs. Kadri concluded that two of the
Given the historical context of this amendment and Kadri’s expectation that it will go into effect before graduation, more than sufficient evidence exists to establish that the Board’s proposed action was intended and designed to have a particular exclusionary effect on plaintiff because of her disabled status.
Cf. Timothy H.,
Defendants’ targeted action here is similar to that in
Doe v. County of Centre, PA,
The Third Circuit ruled that the Board’s application
of
the infectious disease policy to the plaintiffs in
Doe
was discriminatory under Section 504. In its view, the fact that the policy was specifically directed at the parents of HIV-positive individuals rendered it discriminatory towards those parents.
See id.
at 447. Likewise, here,
This Court’s finding of discrimination is further supported by circumstantial evidence offered by plaintiff. With the help of supporting certifications, and, in some cases, simple logic, plaintiff has substantially refuted each of defendants’ stated justifications for their actions. The fact that the veracity of each of defendants’ justifications has been called into question suggests that the proposed amendment is discriminatory despite its neutral language.
See Davis v. Francis Howell Schl. Dist.,
Additionally, intervenor’s counsel implied at oral argument that the proposed amendment is merely an attempt to redefine the valedictorian opportunity to include only grades from courses taken in-school, or to favor such grades over those earned by students receiving homebound instruction.
See
Transcript at pp. 62-63. As noted by the Supreme Court in
Alexander,
“[ajntidiscrimination legislation can obviously be emptied of meaning if every discrimination policy is ‘collapsed’ into one’s definition of what is the relevant benefit.”
Id.
at 301,
That plaintiff has presented sufficient evidence to support a finding of discrimination is further supported by 34 C.F.R. § 104.4, which defines the types of discrimination prohibited under Section 504. Section (b)(vii) of this provision prohibits actions that “[ojtherwise limit a qualified [disabled] person in the enjoyment of any right, privilege, advantage or opportunity enjoyed by others receiving an aid, benefit, or service.” This concept is further delineated by section (b)(4)(h), which explicitly prohibits entities from “utilizing] criteria or methods of administration ... that have the purpose or effect of defeating or substantially impairing accomplishment of objectives of the recipient’s program or activity with respect to handicapped persons.” Taken together, these provisions stand for two key propositions: (1) that disabled
Here, defendants put forth their best efforts to afford plaintiff an equal opportunity to become Moorestown High School’s valedictorian. There is no dispute between the parties that plaintiff was afforded the educational services to which she was entitled under the IDEA, and that, with the help of these services, plaintiff earned the valedictorian award. Where defendants have failed plaintiff is with respect to her full enjoyment of this award. Defendants’ proposed amendment would have the effect of defeating or substantially impairing this accomplishment.
The Federal Office of Civil Rights (“OCR”) letter ruling titled
Letter to Runkel,
25 IDELR 387 (Sept. 30, 1996), further suggests that the retroactive application of the proposed amendment to plaintiff constitutes discrimination under Section 504.
Letter to Runkel
addressed the question of what criteria should apply to the grading schemes of students with disabilities. This letter, which is entitled to deference as an opinion expressed by the administrative agency in charge of ADA enforcement in school settings,
see Chevron v. Nat’l Res. Def. Council,
I now address intervenor’s citation to
PGA Tour, Inc. v. Martin,
Martin, a disabled professional golfer, filed suit under the ADA alleging that the PGA Tour, Inc. (“PGA Tour”) discriminated against him by refusing to accommodate his disability by not allowing him to use a golf cart to transport himself from one tee to the next during the latter portion of a tournament. It was undisputed that Martin suffered from Klippel-Trenau-nay-Weber Syndrome and, as a result, could not walk the final rounds of an 18-hole course.
Id.
at 668,
In ruling for Martin, the Supreme Court made several noteworthy observations which I find instructive here. First, the Court commented that “golf is a game in which it is impossible to guarantee that all competitors will play under exactly the same conditions or that an individual’s ability will be the sole determinant of the outcome. For example, changes in the weather may produce harder greens and more head winds for the tournament leader than for his closest pursuers. A lucky bounce may save a shot or two .... [P]ure chance may have a greater impact on the outcome of an elite golf tournament than the fatigue resulting from the enforcement of the walking rule.”
Id.
at 687,
As in a professional game of golf, it is impossible to guarantee that a student’s educational abilities will be the sole determinant of academic success in a highly regarded and competitive high school. Teachers employ different grading standards, even those who teach the same course. 12 Indeed, grading itself is often subjective and, thus, the same teacher may grade differently two students in the same class who are performing substantially at the same level. This is particularly true when the students are gifted and the distinction between performances is slight. Students have different technological support available to them in their homes, or may enjoy the benefit of an older sibling or parent to assist them. The permutations are endless; the playing field for students rarely is the same. Furthermore, as described above, the specific allegations of unfair competitive advantage alleged by defendants have been substantially refuted by plaintiff. Just as the disabled golfer in Martin did not receive an unfair competitive advantage from his accommodation, neither did plaintiff receive an unfair competitive advantage from her accommodation. This Court is convinced that plaintiff has presented sufficient evidence that she is likely to succeed on her discrimination claims under the ADA and Section 504 because she did not receive an unfair com-, petitive advantage on account of her accommodations under the IDEA.
the Board may not retroactively apply conditions upon a pupil that will affect him without proper notice. Such notice could only have been provided following formal adoption of the requirements by the Board to all students in the high school at the time they entered [the school], through a uniform notification device, such as the student handbook. To conclude otherwise would be to endorse after-the-fact application of a procedure and could result in situations like the instant matter.
Id. at 1994. The Commissioner stressed that any residency requirement for the award of valedictorian “may only be carried out after all students have been apprised of such policy in a uniform and prospective manner.” Id. at 1995 (emphasis added). Thus, any new policy could not apply retroactively to Shankar and, accordingly, the Commissioner directed the Board to name Shankar valedictorian. The Commissioner also directed the Board to name as co-valedictorian the student with the highest G.P.A. who had attended the school for at least three years, in part because the Board had in effect prematurely designated her valedictorian, and thus, at that point, it would have been unfair to strip her of that award. Id. at 1990-91; 1994-95. 14
As in
Shankar,
the Board in this case intends to apply a new valedictorian policy retroactively to Ms. Hornstine. She has worked tremendously hard throughout her four years at Moorestown High in order to distinguish herself as the valedictorian, in spite of her disability. The student handbook memorialized the policy that was in effect for her entire tenure at the school: that the student with the highest seventh semester weighted G.P.A. would be named the sole valedictorian. Defendants now seek to diminish her award by naming
B. Irreparable Harm
In order to gain injunctive relief, plaintiff must show that she will be irreparably harmed without it.
Sampson v. Murray,
In
T.M. v. Mercer County Junior & Senior High Schl,
OAL Dkt. No. EDS 4317-02S,
[m]ore so than their regular education counterparts, special needs students derive a great deal of satisfaction and substantially increase their self-esteem by participating in such ceremonies. It sends a very positive message that even with all of the frustrations and missteps they have encountered along the way, they were able to accomplish a very difficult task. Moreover, a graduation ceremony is an event that, once missed, cannot be replaced.
Id. at *3. Judge Dubin concluded that missing a high school graduation ceremony is an irreparable injury, since the student can not be made whole with financial compensation. Id.
In this case, it is undisputed that plaintiff persevered through the hardship of her disability to not only graduate, but to graduate first in her class. Instead of taking pride in her fine example, defendants seek to strip plaintiff of the distinction of sole valedictorian. Superintendent Kadri has made no secret of the fact that he believes plaintiff should not be the only valedictorian because she was granted accommodations on account of her disability. This was the message he sent to the senior class in February 2003, when he addressed his concerns to them about the inequality of the current valedictorian policy. If the Board were to name another valedictorian along with plaintiff, it would be sending the message loud and clear: “we have two valedictorians this year — a disabled one, and a non-disabled one.” This would diminish the award which plaintiff has worked so hard to attain. Instead of honoring her as the student who earned the highest grades in her class in spite of her disability, the Board would be demeaning her by insinuating that her grades are not as meaningful because she rightfully received accommodations on account of her disability.
If plaintiff wére forced to accept her award along with a non-disabled student, the stigma would likely be unshakable. She would doubt her own accomplishments, and question the significance of being the “disabled valedictorian.” Just as Judge Dubin in
T.M.
reasoned that “a graduation ceremony is an event that, once missed, cannot be replaced,”
id.,
so too is the conferring of a valedictorian award at plaintiffs graduation a once-in-a-lifetime event. Defendants have only one chance to grant plaintiff the distinction she deserves, without diminishing it by treating her differently than her non-disabled classmates. If plaintiff is not the sole valedictorian, she will suffer irreparable harm that cannot be compensated by money damages.
Accord Dennin v. Connecticut Interscholastic Athletic Conference, Inc.,
C. Granting the Temporary Restraint Will Not Result in Greater Harm to the Non-moving Party
In light of the above analysis, there can be no contention that granting plaintiffs application for temporary restraints will result in greater harm to the non-moving parties in this action. Defendants have not identified any harm to themselves other than that which may be visited upon the students who cannot share in the honor of valedictorian. Thus, it is KM.’s purported harm which must be addressed. As to the nature of his harm, K.M. states “it is my position that, even accepting that Ms. Hornstine was disabled in some way, 15 and therefore, entitled to the benefits she received, there is no legal basis upon which I should be excluded from enjoying the benefits that I have achieved without any special privileges or benefits being conferred upon me.” Certification of KM. in Support of Notice of Motion to Intervene at ¶ 17. KM.’s argument simply does not carry the day. KM.’s premise that plaintiff has received “special privileges or benefits” reflects a misunderstanding of the IDEA, and the accommodations plaintiff was entitled to receive pursuant to the Board-approved IEP. Furthermore, as pointed out by plaintiffs counsel at oral argument, plaintiffs in-school classmates receive benefits she cannot enjoy: plaintiff cannot participate in class discussions and share in the ideas of her classmates and teachers, she does not get the benefit of cooperative learning, and receives only half the teaching hours that regularly-schooled students enjoy. See L. Hornstine Cert, at ¶ 11 n.l. Finally, if I were to deny plaintiffs application, I would be permitting the non-moving parties to engage in discriminatory conduct. Accordingly, I find that the imposition of the injunction will not result in a greater harm to the non-moving parties.
D. Granting the Preliminary Relief Will Be in the Public Interest.
The IDEA mandates that all students receive a free and appropriate public education. In this connection, defendants afforded plaintiff this right through her IEP. Plaintiffs IEP was constructed, ratified, and implemented by defendants. Defendants belatedly seek to characterize plaintiffs remarkable academic success as less than it is because of her IEP. Permitting defendants to diminish plaintiffs accomplishments by awarding multiple valedictorian and salutatorian awards will not be in the public interest.
Without the imposition of temporary restraints, defendants would be discriminating against plaintiff because of her disability. Such conduct should not and cannot be tolerated by society. “New Jersey ‘prides itself on judging each individual by his or her merits’ and on being ‘in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society.’ ”
Boy Scouts of Amer
V. CONCLUSION
In summary, it appears that Superintendent Kadri and the Board initially attempted to appease the interests of some parents and students in the school community by reviewing plaintiffs academic history to confirm that she had fairly earned the valedictorian award. In so doing, however, defendants adopted the assumption that somehow plaintiffs disability and accommodations have given her an academic advantage over other students. They have lost sight of the fact that plaintiff, unlike her peers, suffers from a debilitating medical condition, which has never been disputed by the Board, and that her accommodations were aimed at putting her on a level playing field with her healthy classmates. Defendants should revel in the success of their IDEA program and the academic star it has produced; instead they seek to diminish the honor that she has rightly earned.
Regrettably, this issue has polarized the graduating class and the community— most of whom are uninformed about the facts and the law. 16 In light of that, I want to make clear that the evidence in this case has shown that Ms. Hornstine earned her distinction as the top student in her class in spite of, not because of, her disability.
Accordingly, plaintiff is entitled to an order directing defendants to follow the policy that is in effect: the student with the highest seventh semester weighted grade point average will be named the valedictorian. It is undisputed that plaintiff meets that criterion; thus, she should be the sole valedictorian of the Moores-town High School Class of 2003.
Notes
. K.M.'s transcript was submitted under seal to protect his privacy interests.
. This switch occurred at the beginning of the January 2003 semester. L. Hornstine Cert, at ¶ 10. The Court notes that the January 2003 semester is the eighth semester, not considered in the school's current policy for determining valedictorian. This switch, nonetheless, buttresses plaintiff's assertion that she
. Plaintiff has since dismissed her claims against the Township of Moorestown.
. At that time, the Court reserved its right to file a more formal written opinion, pursuant to L.R. Civ. P. 52.1.
. Plaintiff has also brought an invasion of privacy claim under the Family Education Rights and Privacy Act, 20 U.S.C. § 1232g. The Supreme Court has held, however, that there is no private right of action under this Act.
See Gonzaga Univ. v. Doe,
In addition, based on the parties' briefing and comments in a teleconference held on May 6, 2003, the Court does not construe paragraph 23 of Count One in plaintiff's complaint to set forth causes of action based on defamation, breach of contract, or violation of the non-disclosure provisions of N.J.A.C. 6A:14-1.F—6A:14 App. E. Rather, the Court construes these references in paragraph 23 as underlying plaintiff's discrimination claim under the Rehabilitation Act. Compare Complaint at ¶ 23 ("The actions by defendant Paul J. Kadri have defamed Plaintiff Blair L. Homstine, invaded her right to privacy as set forth in the Family Education Rights and Privacy Act, 20 U.S.C. § 1232g, et seq. [sic] and N.J.A.C. 6A: 14-1.1 et seq. [sic], breached her educational contract, violated all non-disclosure provisions as set forth in N.J.A.C. 6A:14-1.1, et seq. [sic], and ignored the rules and regulations promulgated by Defendant Moorestown Board of Education in selecting a valedictorian.”) with Complaint at 126 ("The aforementioned conduct of defendant Paul J. Kadri constituted discrimination in violation of the Rehabilitation Act of 1973.”).
. This holding is not in conflict with the New Jersey Supreme Court statement in
Balsley v. North Hunterdon Reg. Schl. Dist. Bd. of Ed.,
that the Department of Education has jurisdiction to hear discrimination cases brought by public school students or employees under N.J.S.A. 18A:6-9. As implicitly recognized by that Court, the Commissioner has jurisdiction to hear only those discrimination cases brought under New Jersey education law N.J.S.A. 18A:36-20, which prohibits discrimination in the obtaining of "any advantages, privileges or courses of study of the school by reason of race, color, creed, sex or national origin.”
See Balsley,
. This inquiry is rooted in the text of the IDEA, which explains that
Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [subchapter II of the IDEA], the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
See, e.g., Frazier v. Fairhaven Schl. Comm.,
. The Second Circuit’s decision in
Polera v. Bd. of Ed. of Newburgh Enlarged City Schl. Dist.,
. The Court acknowledges defendants' argument that plaintiff may have filed her application with the wrong office within the Department of Education. Even assuming this is true, it does not negate the fact that the Department instructed plaintiff to file a complaint "in a court of appropriate jurisdiction” rather than with another Departmental office.
. In light of the active role that Superintendent Kadri played in investigating plaintiffs curriculum and in drafting and proposing the policy amendment, the Board may consider itself in a different posture from Kadri in terms of liability. Therefore, I take care in this portion of the opinion to differentiate between these two defendants as appropriate.
. Although PGA Tour initially denied Martin’s request for an accommodation, the district court entered a preliminary injunction which required PGA Tour to allow Martin to use a cart. That court later ruled for Martin at the conclusion of a bench trial and PGA Tour appealed this ruling to the Supreme Court.
. The Court is cognizant of defendants' argument that plaintiff was able to earn an A + in AP U.S. History as taught by the home instructor whereas her peers who completed the course in school were unable to earn the same grade because the in-class teacher has never granted an A+ to a student. In contrast, plaintiffs AP Calculus home instructor appears to have graded plaintiff more stringently than her in-class teacher. See Noth-durft Cert, at IN 5-10. These examples buttress this Court’s finding that individual teachers often employ different grading standards.
. In
Shankar,
the OAL was the proper forum to resolve the student's complaint, which implicated only Board policy and did not state any ADA or Rehabilitation Act claims.
See Balsley,
. In this case, the Moorestown Board of Education has not publically designated K.M. as valedictorian; it has simply informed him that he is being “considered” for the award. Thus, this Court has the opportunity to act on this TRO to prevent the Board from taking such action.
. This parenthetical comment is particularly troubling because it underscores the distasteful tenor of this dispute. While there is no question that plaintiff is disabled and entitled to accommodations under the IDEA,
see generally Weixel,
. I am also constrained to point out that the fierceness of the competition in Moorestown High School is evidenced by the widespread involvement of parents in this dispute, which may have been fueled by the school’s emphasis on grade-based distinctions. While the School’s Handbook states that it seeks to minimize competition by no longer reporting class rank, Handbook at 58, elsewhere it heightens the level of competition by naming a valedictorian and salutatorian, and by further denoting honors based on weighted GPA:
Additional recognition at graduation will include the following:
• Students with a WGPA of 4.250 and higher will wear a gold tassel and be noted in the graduation program with a plus ( + ) for Highest Honors.
• Students with a GPA of 3.700 to 4.249 will be noted in the graduation program with an asterisk (*) for High Honors.
• Students with a perfect 4.0 average for all four years (all A grades) will be noted in the graduation program with an "o”.
Id. at 35. It is unfortunate that the burdens of competition imposed on these students by parents and the school community have further fanned the flames of this controversy.