J.T. v. Dumont Public Schools

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2424-12T1

J.T., ON HER OWN BEHALF,
ON BEHALF OF HER MINOR CHILD,
APPROVED FOR PUBLICATION
A.T., AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, November 24, 2014

Plaintiffs-Appellants, APPELLATE DIVISION

v.

DUMONT PUBLIC SCHOOLS, THE DUMONT
PUBLIC SCHOOLS BOARD OF EDUCATION,
EMANUELE TRIGGIANO, IN HIS OFFICIAL
CAPACITY AS SUPERINTENDENT OF THE
DUMONT PUBLIC SCHOOLS, AND PAUL
BARBATO, IN HIS OFFICIAL CAPACITY
AS DIRECTOR OF SPECIAL SERVICES
FOR THE DUMONT PUBLIC SCHOOLS,

Defendants-Respondents.

____________________________________________________

Argued April 1, 2014 – Decided November 24, 2014

Before Judges Messano, Hayden, and Lisa.

On appeal from the Superior Court of New
Jersey, Chancery Division, Bergen County,
Docket No. C-139-12.

John D. Rue argued the cause for appellant
(Law Offices of John Rue, attorneys; Maryam
Jazini Dorcheh (White & Case), Jack E. Pace,
(White & Case) of the New York bar, admitted
pro hac vice, and Peter E. Wilhelm
(White & Case) of the New York bar, admitted
pro hac vice, on the brief).
 Eric L. Harrison argued the cause for
respondents (Methfessel & Werbel, attorneys;
Mr. Harrison and Boris Shapiro, on the
brief).

Ruth Deale Lowenkron argued the cause for
amici curiae Council of Parent Attorneys and
Advocates, Disability Rights New Jersey,
Education Law Center, New Jersey Special
Education Practitioners, Statewide Parent
Advocacy Network, and the Special Education
Clinic of Rutgers University - Newark
(Education Law Center, attorneys; Ms.
Lowenkron, on the brief).

The opinion of the court was delivered by

HAYDEN, J.A.D.

The issue before us is whether one component of an

appropriate special education placement violates the Law Against

Discrimination's (LAD), N.J.S.A. 10:5-1 to -42, prohibition

against discrimination due to a disability. Plaintiff J.T., on

behalf of herself, her minor son A.T., and all Dumont students

similarly situated, appeals from the Chancery Division order

granting summary judgment in favor of defendants. Plaintiffs

allege that defendants failed to accommodate the putative class 1

members' disabilities in violation of the LAD by refusing to

1
The complaint defines the putative class as all "kindergarten
students in the District, or who may be kindergarten students in
the District in the future, [who] are classified as requiring
special education services, or who may be so classified in the
future, and [who] reside within the town of Dumont." This class
consisted of at least ninety-six students. The complaint
alleged that A.T.'s claims are "typical of those of the [c]lass
as a whole."

2 A-2424-12T1
provide the special education services that the special needs

students require in their neighborhood schools. Defendants are

the Dumont school district, the Board of Education, the district

superintendent, and the director of special services. Because

plaintiffs did not demonstrate they were deprived of a benefit

due to a disability and thus failed to make a prima facie

showing of disability discrimination under the LAD, we affirm.

I.

The record reveals that J.T. and her minor son A.T. resided

in Dumont, a town of about two square miles. The school

district of Dumont has four elementary schools: Selzer, Grant,

Honiss, and Lincoln. In both the 2008-2009 and 2009-2010 school

years, about 180 students attended kindergarten within the

district. The school district's policy provided that generally

children were to attend their neighborhood schools. An

exception to the policy was when the child's Individualized

Education Plan (IEP) required special education services that

were provided in a different school.

Beginning in the 2008-2009 school year, the district

offered an inclusion kindergarten class in addition to a self-

contained kindergarten class. The self-contained classroom had

only children whose needs, according to their IEPs, warranted a

full-time special education teacher. The inclusion classroom,

3 A-2424-12T1
on the other hand, had both general education and special

education students who were taught the regular curriculum by a

full-time general education teacher with the part-time

assistance of a special education teacher. The amount of time

that the special education teacher spent in the inclusion

classroom varied according to the combined requirements of the

children's IEPs. Both the inclusion and self-contained classes

were located in the same school building each year.

In each of the 2008-2009 and 2009-2010 school years, four

special needs children were placed in the inclusion kindergarten

classroom as required by their IEPs.2 In the 2010-2011 school

year, only one student with disabilities was in the inclusion

class. Each year during this same period, depending on their

individual educational needs as determined by their IEPs,

several special education children were placed in the self-

contained kindergarten classroom, in out-of-district placements,

or in regular kindergartens in their neighborhood schools

because they needed only support services, not special education

teachers, to carry out their IEPs.3

2
Inclusion classrooms may contain up to eight students with
special needs. N.J.A.C. 6A:14-4.6(n).
3
At least one child was in a regular education classroom without
special services because his parents declined the inclusion
placement in favor of placement in the neighborhood school
(continued)

4 A-2424-12T1
 When A.T. was three years old, he was diagnosed with

childhood autism, a pervasive developmental disorder. In the

2008-2009 school year, pursuant to his IEP, A.T. attended

preschool in the district's inclusion classroom in Selzer, his

neighborhood school, for half the day and spent the remainder of

the day in an out-of-district self-contained program.

In May 2009, the district personnel and J.T. met to discuss

A.T.'s IEP for his upcoming kindergarten year. J.T. and the

district agreed that A.T. needed some special education

services. The district personnel proposed moving him from a

self-contained class to the district's inclusion class, to be

held in Grant. The inclusion class was taught by a regular

education teacher who followed a regular education curriculum.

The class also had fewer students than a regular education

kindergarten class and provided services according to each

special education student's IEP with the assistance of a part-

time special education teacher.

In contrast, J.T. wanted A.T. to attend a general education

classroom at his home school, Selzer, with the supports provided

in that classroom. The district personnel did not think this

option met A.T.'s special needs; rather, they reasoned that A.T.

(continued)
without a special education teacher's services.

5 A-2424-12T1
needed the integrated services, smaller class size, and in-class

special education teacher to enable A.T. to retain and

generalize information in order to meet the goal of readying him

for a regular education classroom for the next year. Although

J.T. did not agree, the final IEP designated A.T.'s educational

placement as the inclusion kindergarten class at Grant.

In June 2009, J.T. filed a due process petition with the

New Jersey Department of Education challenging the

appropriateness of the IEP's inclusion placement at Grant rather

than a regular education placement at Selzer. In September

2009, A.T. began attending the inclusion kindergarten class at

Grant. Shortly thereafter, on September 28, 2009, plaintiffs

filed a class action complaint in federal court alleging

violations of (1) the Individuals with Disabilities Education

Act (IDEA), 20 U.S.C.A. §§ 1400-1485, based on the district's

failure to educate children in the least restrictive

environment, (2) Section 504 of the Rehabilitation Act (RA), 29

U.S.C.A. § 794, due to discrimination against class members, and

(3) the LAD for failing to accommodate class members in their

neighborhood school. In November 2009, plaintiffs withdrew

their due process petition.

While the federal litigation was pending, A.T. completed

his kindergarten year in the inclusion class. The parties do

6 A-2424-12T1
not dispute that A.T. benefitted educationally, emotionally, and

socially from the inclusion placement. For his first grade

year, the parents and district personnel agreed that it was

appropriate to place him in the regular education classroom in

Selzer with some special education services.

After completion of discovery in federal court, both sides

moved for summary judgment. The district court granted summary

judgment in favor of defendants on the IDEA and RA claims,

finding a lack of subject matter jurisdiction because there was

no legally cognizable injury and plaintiffs failed to exhaust

administrative remedies. The court noted that "plaintiffs are

also not claiming that A.T. suffered a deprivation of

educational benefits. Thus, Plaintiffs have not demonstrated

either 'a loss of educational opportunity for the student,' or a

serious deprivation of the parents' 'participation rights,' or a

'deprivation of educational benefits . . . .'" J.T. v. Dumont

Pub. Schs., No. 09-4969 (MAH), 2012 U.S. Dist. LEXIS 42671, at

*34-35 (D.N.J. Mar. 28, 2012) (internal citations omitted).

In finding that plaintiffs failed to establish a concrete

and particularized harm, the court reasoned:

Plaintiffs may not establish their standing
based solely on the argument that Dumont
committed a procedural violation by failing
to consider whether the exact same services
should be provided in a child's neighborhood
school. Crucially, Plaintiffs have failed

7 A-2424-12T1
 to identify, or they have abandoned,
assertions that Dumont's policy resulted in
the loss of an educational opportunity,
seriously deprived parents of participation
rights, or deprived students of educational
benefits.

[Id. at *42.]

The court also found that plaintiffs' voluntary failure to

pursue their administrative remedies was fatal to their

complaint. According to the court, "[t]he evidence does not

support Plaintiffs' claim that Dumont used the inclusion class

to systematically avoid the IDEA's requirement to individually

consider students' needs when making placement decisions." Id.

at *54. On the issue of whether the placement was the least

restrictive environment, the court pointed out that plaintiffs

and any kindergartener affected by an inclusion placement, "can

[and must] seek redress on this substantive claim through the

administrative process." Id. at *55.

Addressing plaintiffs' claim that placement in the non-

neighborhood school was a violation of the RA, the court found

that "[f]or the same reasons Plaintiffs have failed to show that

they suffered an injury under the IDEA, Plaintiffs have failed

to establish that J.T. has been discriminated against due to his

disability." Id. at *58. The court specifically found that

plaintiffs' RA claim of discrimination due to not attending

one's neighborhood school was based upon the same facts as their

8 A-2424-12T1
IDEA claim. Ibid. Having dismissed the federal claims for lack

of subject matter jurisdiction, the district court declined to

exercise supplemental jurisdiction over the LAD claims and

dismissed them without prejudice.

II.

Shortly after the dismissal of the federal complaint,

plaintiffs filed a civil complaint in the Chancery Division.

The complaint alleged violations of the LAD, including that

defendants discriminated against the putative class members due

to their disabilities by (1) forcing them to receive required

special education services in a school other than their

neighborhood school, (2) failing to consider the placements or

the provision of transportation on an individual basis, and (3)

segregating class members due to their special education needs.

Plaintiffs sought a declaration that defendants had failed to

obey the LAD and asked for an order requiring, among other

relief, that all class members be educated in their neighborhood

school whenever possible, an in-class special education teacher

be furnished in each of the class members' neighborhood school,

and a court-appointed Special Master paid for by the district to

review all IEPs and determine defendants' compliance with these

requirements.

9 A-2424-12T1
 After agreeing to rely on the discovery obtained in the

federal case, the parties moved for partial summary judgment as

to liability under the LAD. In analyzing plaintiffs' LAD

disability accommodation claim, the judge found it was

undisputed that A.T. had a disability and that the school

district was an entity required to make reasonable

accommodations unless the school district demonstrated that such

accommodations would impose an undue burden to its operation.

N.J.A.C. 13:13-4.11. Employing the standard from the Americans

with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213, the

judge found that to state a claim for failure to accommodate, a

plaintiff must show that he or she (1) has a disability; (2) is

otherwise qualified to participate in a program; and (3) was

denied the benefits of the program or discriminated against

because of the disability.

The judge noted that under the IDEA, centralization of

programs was lawful and determined that plaintiffs failed to

show that the centralization of the program deprived them of a

benefit. Based upon the circumstances present, the judge

reasoned that program accessibility, rather than facility

accessibility, was key to the implementation of the ADA, and by

implication the LAD.

10 A-2424-12T1
 The judge found that plaintiffs established the first two

elements but did not show that the district deprived A.T. of a

cognizable benefit or program due to a disability. "To the

contrary, the [p]laintiffs received all the necessary

educational benefits, programs and extracurricular resources

required under the law." Although the judge recognized that

there was a pedagogical benefit to attending one's neighborhood

school, "all other things being equal," he emphasized that A.T.

thrived in his kindergarten class, educationally and socially,

and that there was no evidence that A.T. or any of the putative

class members suffered actual harm by not attending his or

neighborhood school or by being bused to school. Accordingly,

the judge dismissed the complaint. This appeal followed.

While this appeal was pending, the Third Circuit upheld the

district court's decision dismissing plaintiffs IDEA and RA

claims on April 26, 2013. J.T. v. Dumont Pub. Schs., 533 Fed.

App'x 44, 55 (3d Cir. 2013). The circuit court emphasized that

"IDEA permits schools to provide special education services in a

centralized location." Id. at 49. The circuit court concurred

that there was no substantive harm shown to A.T. or any of the

putative class members as there was "no denial of services,

opportunities, participation, or benefits." Id. at 50. The

circuit court also rejected plaintiffs' claim under the RA,

11 A-2424-12T1
reasoning that "when [RA] claims are based on violations of the

IDEA, the [RA] claims are derivative of the IDEA claims." Id.

at 52 (internal citations omitted).

In addition, the circuit court explicitly rejected

plaintiffs' claim that they suffered additional injury under the

RA because they were bused out of their neighborhood and located

in a different part of the school from the regular education

classrooms, thus marking them as disabled in the eyes of their

peers. Ibid. The court found that Doe v. National Board of

Medical Examiners, 199 F.3d. 146, 153 (3d Cir. 1999), which held

that under certain circumstances, merely identifying a person as

disabled can be a violation of the RA, did not support

plaintiffs' RA claims. J.T., supra, 533 Fed. App'x at 52. The

court found that busing students in compliance with their IEPs

was not such a circumstance, stating "[i]n contrast, IDEA

requires school districts to identify students in need in order

to provide them special education services. Busing students to

a centralized location for special services may be integral to

IDEA compliance and, depending on the IEP, is sought by many

parents of children with special needs." Ibid. (internal

citations omitted). The court also stressed that "the procedure

through which the school district placed A.T. in the inclusion

12 A-2424-12T1
class is not rendered a systemic issue simply because J.T.

raises it in a putative class action."4 Id. at 54.

III.

On appeal, plaintiffs argue that the trial judge erred in

holding that they failed to establish a prima facie case under

the LAD for disability discrimination. Plaintiffs contend that

attending one's neighborhood school is a cognizable benefit

protected under the LAD, and that the judge incorrectly

distinguished between program and facility accessibility in

analyzing the benefit. Further, plaintiffs contend that the

judge's determination that plaintiffs provided no proof of

actual harm was erroneous because plaintiffs' expert's report

described such harm.

Amici, consisting of several non-profit organizations that

advocate for the rights of children with disabilities, support

plaintiffs' arguments. They submit that studies show that

children with disabilities benefit more from being in regular

education classrooms with regular education students, rather

4
In considering J.T.'s failure to exhaust the IDEA
administrative remedies, the court observed that while J.T.
framed the complaint as an overall challenge to a general school
policy, the determination of the effect of any district policy
on each IEP entailed a factually-intensive inquiry, which the
IDEA administrative process was designed to address, noting
that"[t]his claim addresses only one component of the school
district's educational program . . . ." Id. at 54.

13 A-2424-12T1
than being segregated in special education classes with only

disabled students. They also contend that children are

stigmatized as different by having to take a small school bus to

their programs. Amici further argue that the school district's

policy of centralizing the inclusion kindergarten class denied

the putative class members of benefits they would have enjoyed

if they had attended integrated classrooms in their neighborhood

schools.

Defendants maintain that no LAD violation occurred because

under the IDEA and state law, a school district has discretion

in determining the location and type of services that a child

needs to receive an appropriate education in accordance with the

child's IEP. They also argue that because plaintiffs' LAD

claims are based upon the same core facts as their IDEA claims,

the LAD claims are derivative of the IDEA claims and fail for

the same reasons as the IDEA and the RA claims. Defendants

further contend that plaintiffs failed to establish that A.T.

was deprived of a benefit or, in the alternative, submit that

the IEPs were a reasonable accommodation based upon each child's

individual disability. Finally, defendants urge us to affirm

the trial court's decision because the record does not contain

any proof of actual harm.

14 A-2424-12T1
 We begin with a review of the applicable legal principles

that guide our analysis. We first address the federal law

concerning education of children with disabilities. "Although

education is primarily a concern of state and local

governments," education of children with disabilities "is

regulated by a complex scheme of federal and state statutes and

administrative regulations." Lascari v. Bd. of Educ., 116 N.J.

30, 33 (1989). The IDEA ensures that all children with

disabilities5 have available to them a free appropriate public

education (FAPE) in the least restrictive environment that

provides special education and related services to meet their

unique needs and prepare them for further education, employment,

and independent living, and ensures that the rights of such

children and their parents are protected. See 20 U.S.C.A. §§

1400(d)(1)(A),(B). New Jersey has adopted a statute, N.J.S.A.

18A:46-1 to -55, and regulations, N.J.A.C. 6A:14-1.1 to -9.2, to

comply with the extensive goals and procedures established in

the IDEA in order to receive significant federal funding. See

20 U.S.C.A. § 1412.

5
A "child with a disability" includes children with intellectual
disabilities, speech and language impairments, serious emotional
disturbance, and specific learning disabilities, who, by reason
thereof, need special education and related services. 20
U.S.C.A. § 1401(30)(A).

15 A-2424-12T1
 Central to the IDEA and the provision of a FAPE is the IEP,

a comprehensive written plan developed by a team consisting of

the student's parents, teachers, and representatives of the

local educational agency.6 20 U.S.C.A. § 1414(d). The IEP's

ultimate purpose is to tailor the educational services in order

to meet the special needs resulting from the student's

disability and to ensure that the student receives the benefits

of a FAPE. 20 U.S.C.A. §§ 1412(a)(1), (4). The IEP is

generally developed each year by the entire IEP team. 20

U.S.C.A. §§ 1414(d)(2), (4). Regarding the development of this

important comprehensive plan, the IDEA accords "significant

deference to the choices made by school officials as to what

constitutes an appropriate program for each student." Ridley

Sch. Dist. v. M.R., 680 F.3d 260, 277 (3d Cir. 2012).

The IDEA mandates that, to the maximum extent possible,

children with disabilities must be educated in the least

restrictive environment. 20 U.S.C.A. § 1412(a)(5); N.J.A.C.

6
Under the New Jersey Administrative Code, an IEP is defined as
"a written plan which sets forth present levels of academic
achievement and functional performance, measurable annual goals
and short-term objectives or benchmarks . . . ." N.J.A.C.
6A:14-1.3. It refers to an "integrated, sequential program of
individually designed instructional activities and related
services necessary to achieve the stated goals and objectives.
This plan shall establish the rationale for the student's
educational placement[] [and] serve as the basis for program
implementation. . . ." Ibid.

16 A-2424-12T1
6A:14-1.1(b)(5). This environment is one that, to the greatest

extent possible, educates disabled children together with

children who are not disabled in the same school the disabled

child would attend if the child was not disabled. 20 U.S.C.A. §

1412(a)(5); N.J.A.C. 6A:14-4.2. Specifically, "[u]nless the IEP

of a child with a disability requires some other arrangement,

the child is educated in the school that he or she would attend

if nondisabled." Murray v. Montrose Cnty. Sch. Dist., 51 F.3d.

921, 929 (10th Cir.), cert. denied, 516 U.S. 909, 116 S. Ct.

278, 133 L. Ed. 2d 198 (1995) (internal citations omitted); see

also N.J.A.C. 6A:14-14.2(a)(7). The Third Circuit has

interpreted this to require that a disabled child be placed in

the least restrictive environment that will provide the child

with a "meaningful educational benefit." T.R. v. Kingwood Twp.

Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000). Additionally,

in the Third Circuit, there is a presumption in favor of placing

the child in the neighborhood school if possible. See Oberti v.

Bd. of Educ., 995 F.2d 1204, 1224 n.31 (3d Cir. 1993).

Nevertheless, the IDEA does not impose an absolute

obligation to place a child in his or her neighborhood school;

rather, the school district is required to take into account

geographical proximity of placement. Barnett v. Fairfax Cnty.

Sch. Bd., 927 F.2d 146, 153 (4th Cir.), cert. denied, 502 U.S.

17 A-2424-12T1
589, 112 S. Ct. 175, 116 L. Ed. 2d 138 (1991); White v.

Ascension Parish Sch. Bd.,7 343 F.3d 373, 380 (5th Cir. 2003)

(school districts have discretion on the location of special

education services); see also AW v. Fairfax Cnty. Sch. Bd., 372

F.3d 674, 682 (4th Cir. 2004) (finding no mandate that the

student must be assigned to the closest school). School

districts are permitted to centralize services and the

preference for neighborhood schooling is one of many factors

which the school district is entitled to consider. See Barnett,

supra, 927 F.2d at 153. Further, the school district is not

required to move a program or service to a child's neighborhood

school. See Kevin G. v. Cranston Sch. Comm., 130 F.3d. 481, 482

(1st Cir. 1997) (holding that a school district was not required

to move a nurse to a student's neighborhood school to comply

with the IDEA), cert. denied, 524 U.S. 956, 118 S. Ct. 2377, 141

L. Ed. 2d 744 (1998); see also Urban v. Jefferson Cnty. Sch.

Dist., 89 F.3d 720, 728 (10th Cir. 1996); M.A. v. Voorhees Twp.

Bd. of Educ., 202 F. Supp. 2d 345, 363-64 (D.N.J. 2002) (holding

that a school district was not required to make dramatic changes

7
Indeed, all federal circuits that have considered the issue
(First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth)
recognize that there is no right to a neighborhood school
assignment under the IDEA. White, supra, 343 F.3d at 381.

18 A-2424-12T1
to its program in order for a child to attend his neighborhood

school), aff'd, 65 Fed. App'x 404 (3d Cir. 2003).

If the parents disagree about the contents of the IEP, the

IDEA provides two methods of seeking redress. They can request

a due process hearing,8 which in New Jersey entails a full-

fledged adjudicatory hearing at the Office of Administrative

Law, or they can file an administrative complaint with the

designated state education agency, which must investigate and

issue a decision within sixty days. See 34 C.F.R. § 300.152. A

party aggrieved by the decision may bring an appeal from the

administrative proceedings in any state or federal district

court regardless of the amount in controversy. 20 U.S.C.A. §

1415(i)(2)(A). Generally, plaintiffs must exhaust these

administrative remedies before seeking relief under the IDEA as

well as under several other federal laws:

Nothing in this title [20 U.S.C.A. §§ 1400
et seq.] 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
[29 U.S.C.A. §§ 790 et seq.], or other
Federal laws protecting the rights of
children with disabilities, except that

8
At a due process hearing, the student may bring complaints
under the IDEA "with respect to any matter relating to the
identification, evaluation, or educational placement of the
child, or the provision of a [FAPE] to such child[.]" 20
U.S.C.A. § 1415(b)(6)(A).

19 A-2424-12T1
 before the filing of a civil action under
such laws seeking relief that is also
available under this part [20 U.S.C.A. §§
1411 et seq.], the procedures under
subsections (f) and (g) shall be exhausted
to the same extent as would be required had
the action been brought under this part.

[20 U.S.C.A. § 1415(l).]

Thus, to the extent that any federal action seeks relief

that is available under the IDEA, the administrative procedures

in the IDEA must first be exhausted. N.J. Prot. & Advocacy,

Inc. v. N.J. Dep't of Educ., 563 F. Supp. 2d 474, 484 (D.N.J.

2008). The exhaustion rule permits "agencies to exercise

discretion and apply their expertise, to allow the complete

development of the record before judicial review, to prevent

parties from circumventing the procedures established by

Congress, and to avoid unnecessary judicial decisions by giving

the agency an opportunity to correct errors." Urban, supra, 89

F.3d at 724 (citing Ass'n for Cmty. Living v. Romer, 992 F.2d

1040, 1044 (10th Cir. 1993)). Further, "[t]his provision bars

plaintiffs from circumventing IDEA's exhaustion requirement by

taking claims that could have been brought under IDEA and

repackaging them as claims under some other statute" such as the

RA and the ADA. Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d.

272, 281 (3rd Cir. 1996).

20 A-2424-12T1
 In the prior federal litigation, plaintiffs contended,

albeit unsuccessfully, that defendants' policy of centralizing

the provision of special education services and failing to

provide special education services at each child's neighborhood

school violated the RA. The RA provides that anyone receiving

federal funds may not discriminate against an "otherwise

qualified individual with a disability . . . ." 29 U.S.C.A. §

794(a). The education regulations promulgated under Section 504

of the RA generally conform to the standards established in the

IDEA. See 34 C.F.R. §§ 104.31 to -39. Indeed, the IDEA and the

RA are "built around fundamental notions of equal access to

state programs and facilities" and thus "their substantive

requirements . . . have been interpreted to be strikingly

similar." Smith v. Robinson, 468 U.S. 992, 1017, 104 S. Ct.

3457, 3471, 82 L. Ed. 2d 746, 768 (1984), superseded on other

grounds by 20 U.S.C.A. 1415(i)(3)(B).

Comparable to the RA, the ADA protects against disability

discrimination by providing that "no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity." 42 U.S.C.A. § 12132. The

ADA regulations generally conform to the regulations promulgated

21 A-2424-12T1
under Section 504 of the RA. See 28 C.F.R. § 35.103(a). "With

limited exceptions, the same legal principles govern ADA and RA

claims." CG v. Pa. Dep't of Educ., 734 F.3d 229, 235 (3d Cir.

2013).

Relying on these well-recognized similarities, federal

courts have routinely concluded that "if a disabled child is not

entitled to a neighborhood placement under the IDEA, he [or she]

is not entitled to such a placement under [the RA]." Urban,

supra, 89 F.3d at 728; see also Miller v. Bd. of Educ., 565 F.3d

1232, 1246 (10th Cir. 2009) (noting that "complying with the

IDEA is sufficient to disprove educational discrimination" under

the RA); N.L. v. Knox Cnty. Schs., 315 F.3d 688, 695-96 (6th

Cir. 2003) (noting that "precedent has firmly established that

section 504 claims are dismissed when IDEA claims brought on the

theory of a denial of free appropriate public education are also

dismissed."); Taylor v. Altoona Area Sch. Dist., 737 F. Supp. 2d

474, 487 (W.D. Pa. 2010) (noting that if an IDEA claim fails,

ADA and RA claims brought on the same core facts "must also

fail") (internal citations omitted); Barnett, supra, 927 F.2d at

154-55 (finding school board did not violate the IDEA or the RA

by not delivering program for hearing impaired student in

child's neighborhood school). Conversely, if the IDEA claim and

the RA or the ADA claims do not share a similar factual basis,

22 A-2424-12T1
they will be addressed separately. See CG, supra, 734 F.3d at

235; Taylor, supra, 737 F. Supp. 2d at 487-88; Hornstine v. Twp.

Of Moorestown, 263 F. Supp. 2d 887, 901 (D.N.J. 2003).

While the IDEA concerns the affirmative duty to provide a

public education to disabled students, the RA and the ADA

"embody the negative prohibition against depriving disabled

students of public education." CG, supra, 734 F.3d at 234

(citing W.B. v Matula, 67 F.3d 484, 492-93 (3d Cir. 1995)).

Hence, the IDEA provides a remedy for "inappropriate educational

placement decisions, regardless of discrimination," while the

ADA and the RA prohibit and provide a remedy for discrimination.

Ibid. (citing Hornstine, supra, 263 F. Supp. 2d at 901).

Generally, failure to provide a FAPE violates the IDEA as well

as the ADA and the RA9 "because it deprives disabled students of

a benefit that non-disabled students receive simply by attending

school in the normal course — a free, appropriate public

education." Id. at 235. Conversely, the provision of a FAPE

generally rules out discrimination claims under the RA and the

ADA for benefits available under the IDEA. See, e.g., Miller,

9
We recognize that as the definition of disability is different
under the IDEA and the RA, violation of the IDEA is not evidence
of a per se violation of the RA. Andrew M. v. Delaware Cnty.
Office of Mental Health & Mental Retardation, 490 F.3d 337, 349
(3d Cir. 2007).

23 A-2424-12T1
supra, 565 F.3d. at 1246; H.D. v. Cent. Bucks Sch. Dist., 902 F.

Supp. 2d 614, 628 (E.D. Pa. 2012).

IV.

We now turn to the LAD's protection from disability

discrimination, the basis of plaintiffs' complaint. In New

Jersey, persons with disabilities are protected from

discrimination by the LAD. N.J.S.A. 10:5-4. In relevant part,

the LAD provides:

All persons shall have the opportunity to
obtain . . . all the accommodations,
advantages, facilities, and privileges of
any place of public accommodation . . .
without discrimination because of . . .
disability . . . . This opportunity is
recognized as and declared to be a civil
right.

[N.J.S.A. 10:5-4.]

"A place of public accommodation" includes "any kindergarten,

primary and secondary school[.]" N.J.S.A. 10:5-5(l).

Our courts broadly interpret the LAD to further its purpose

"to eradicate the 'cancer of discrimination[.]'" Ellison v.

Creative Learning Ctr., 383 N.J. Super. 581, 588 (App. Div.

2006) (internal citations omitted). The regulations implemented

in furtherance of the LAD similarly provide that "the remedial

provisions of the statute will be given a broad construction and

its exceptions construed narrowly." N.J.A.C. 13:13-1.2(a). The

LAD must be construed to prohibit any unlawful discrimination

24 A-2424-12T1
against any person because such a person is disabled. N.J.S.A.

10:5-4.

The LAD public accommodation regulations provide that

(a) It shall be unlawful for . . . any place
of public accommodation to refuse, withhold
from or deny an individual, either directly
or indirectly, on account of that person's
disability or perceived disability, access
to any of the accommodations, advantages,
facilities or privileges of a place of
public accommodation . . . [and] to
discriminate against a person with a
disability in the price, eligibility
criteria, methods of administration,
standards, terms, or conditions upon which
access to such accommodations, advantages,
facilities or privileges may depend.

[N.J.A.C. 13:13-4.3(a).]

N.J.A.C. 13:13-4.4(a) requires a place of public

accommodation to "afford goods, services, facilities,

privileges, advantages, and accommodations . . . in the most

integrated setting" and "to the extent reasonable[.]" And

N.J.A.C. 13:13-4.11(a) requires a place of public accommodation

to accommodate a disabled person to the extent reasonable unless

providing the accommodation "would impose an undue burden" on

the place of public accommodation.

To determine the extent of the protection afforded to

disabled persons under the LAD, we must look to the analytical

framework of the RA and the ADA. Lasky v Moorestown Twp., 425

N.J. Super. 530, 538 (App. Div.), certif. denied, 212 N.J. 198

25 A-2424-12T1
(2012); See also Ensslin v. Twp. Of N. Bergen, 275 N.J. Super.

352, 364 (App. Div. 1994) (noting appropriateness of construing

a state regulation based on federal law due to the correlation

between state and federal law on disability discrimination),

certif. denied, 142 N.J. 446 (1995). Indeed, the Supreme Court

has recently observed that the Legislature has not "amended the

LAD to afford rights to the disabled that are different from

those found in Section 504 [of the RA] and the ADA . . . ."

Victor v. State, 203 N.J. 383, 406 (2010); see also Chisolm v.

McManimon, 275 F.3d 315, 324-25 n.9 (3d Cir. 2001) (analyzing an

ADA claim "with the understanding that the principles will apply

equally to the [RA] and the [LAD] claims").

Under the ADA and the RA standard for establishing a prima

facie case of failure to accommodate a disability, a plaintiff

must show that he or she (1) had a disability; (2) was otherwise

qualified to participate in the activity or program at issue;

and (3) was denied the benefits of the program or otherwise

discriminated against because of his or her disability.

Chambers v. Sch. Dist of Philadelphia Bd. of Educ., 587 F.3d

176, 189 (3d Cir. 2009); D.G. v. Somerset Hills Sch. Dist., 559

F. Supp. 2d 484, 503 (D.N.J. 2008); cf., Victor, supra, 203 N.J.

at 407. If the plaintiff can meet this burden, the question

then becomes whether the accommodation was reasonable. Lasky,

26 A-2424-12T1
supra, 425 N.J. Super. at 539, 542-44; Ellison, supra, 383 N.J.

Super. at 595-96. The defendant may argue as an affirmative

defense that the requested accommodation created an undue burden

on the defendant. Hall v. Saint Joseph's Hosp., 343 N.J. Super.

88, 108-09 (App. Div. 2001), certif. denied, 171 N.J. 336

(2002).

In this case, the trial court found that plaintiffs

established the first two elements of a LAD failure-to-

accommodate prima facie case, that A.T. was disabled and was

otherwise qualified for a program or activity, but that

plaintiffs did not establish the third element, that A.T. was

deprived "a cognizable benefit or program." Applying the

applicable RA and ADA legal principles, we agree.

When a disabled child is denied a FAPE, it violates the

IDEA and the RA "because it is denying a disabled child a

guaranteed education merely because of the child's disability.

It is the denial of an education that is guaranteed to all

children that forms the basis of the claim." Andrew M., supra,

490 F.3d at 350; C.G., supra, 734 F.3d at 235. The undisputed

facts in this case show that A.T. received a FAPE and there was

no evidence presented that any other class member did not or

will not receive a FAPE. Under the IDEA and state law, this is

precisely the special education benefit made available to A.T.

27 A-2424-12T1
 Accordingly, guided by the previously cited cases

concerning the RA, the ADA, and the IDEA, we hold that, when a

LAD discrimination claim concerns the special education benefits

and related services available to a child under the IDEA, the

program or benefit used to determine the prima facie test for

disability discrimination is the provision of a FAPE. Relying

further on the similarity between the RA, the ADA, and the LAD,

we also hold that if a disabled child is not entitled to a

neighborhood school placement under the ADA or the RA, he or she

is not entitled to such placement under the LAD.

Plainly, the issue of the location of special education

services is a component of the IEP process aimed at developing a

FAPE. The same facts underlying A.T.'s IDEA claim and RA claim

are the core facts in his LAD claim. Federal courts have

routinely rejected claims that placement in a non-neighborhood

school for purposes of receiving special education and related

services is a form of disability discrimination under the RA or

the ADA. See White, supra, 343 F.3d at 381. In fact, the Third

Circuit rejected plaintiffs' claim of RA discrimination based on

non-neighborhood school placement in affirming the dismissal of

the federal litigation here. Plaintiffs have not cited and our

research has not revealed any cases that held that the failure

to provide a FAPE in the neighborhood school violated the RA or

28 A-2424-12T1
the ADA.

Plaintiffs incorrectly seek to isolate one specific

component of A.T.'s IEP, the inclusion class location, and

assert that it violates the right to attend one's neighborhood

school, purportedly a separate and distinct benefit from the

educational benefits provided under the IDEA. Separation of one

component of the FAPE from all the other services and

considerations that went into the IEP in this case is not

appropriate. We cannot agree that, for purposes of the three

elements of the prima facie test, there is a separate stand-

alone benefit of attending the neighborhood school unrelated to

the provision of a FAPE. This argument has not been successful

under the RA or the ADA and, based upon previously stated RA and

ADA principles, it must fail here. Simply put, where the

disabled child's placement is determined as part of the IDEA

process, the program or benefit the school district must provide

is the provision of a FAPE. Andrew M., supra, 490 F.3d at 350.

Plaintiffs argue further that centralization of special

education services, although admittedly correct under the IDEA

and federal and state special education regulations, denies a

child access to his neighborhood school in violation of state

and federal regulations requiring that all public facilities be

accessible to persons with disabilities. Based upon RA and ADA

29 A-2424-12T1
principles addressing special education benefits, this argument

is also unpersuasive. Moreover, the district has not denied

A.T. physical access to his neighborhood school; indeed, he

attended Selzer for the pre-school class and for first grade.

He did not attend Selzer for kindergarten because his IEP, aimed

at providing a FAPE, called for him to be in an inclusion class,

which was held at Grant. Thus, plaintiffs' reliance on

regulations concerning physical access is misplaced here.

Additionally, we reject plaintiffs' contention that the

provision of special transportation services to bus A.T. to his

special education program constitutes a separate violation of

the LAD. Transportation is a related service which cannot be

segregated from the child's individual IEP and FAPE. The IDEA

requires transportation to be provided as a related service when

it is necessary to enable a child with a disability to benefit

from education. 20 U.S.C.A. § 1401(26)(A). Thus,

transportation is not a separate educational component but is a

means to assist the child in receiving the FAPE as designed by

the IEP. If an individual student is aggrieved by the provision

or non-provision of transportation, he or she can file for due

process under the IDEA and request a change. See Tyler W. v.

Upper Perkiomen Sch. Dist., 963 F. Supp 2d 427, 436-37 (E.D. Pa.

2013) (FAPE provided despite lengthy bus ride to educational

30 A-2424-12T1
placement); Bonadonna v. Cooperman, 619 F. Supp. 401, 415

(D.N.J. 1985) (district required to provide transportation to

facility located distance from neighborhood school).

Contrary to plaintiffs' arguments, the cases upon which

they relied do not provide support for their claims. Oberti, an

IDEA case, highlighted the undisputed legal principle that,

under the IDEA, the preferred placement for special education

services is the least restrictive environment, but also

acknowledged, as do all the cases concerning least restrictive

environment, that the placement depends on the child's unique

needs as determined by a properly constructed IEP. Oberti,

supra, 995 F.2d at 1214-15. Importantly, Oberti underscores

that the IDEA governs the decision on where the child receives

special education services and if a child is aggrieved by the

placement, the remedy is to file a due process petition alleging

failure to comply with the IDEA. 20 U.S.C.A. 1415(b)(6). Here,

plaintiffs seek to make an end run around the IDEA by dismissing

the due process petition and repackaging the claim as a class

action under the LAD.

Likewise, Hornstine is inapposite here. In Hornstine, the

district court engaged in an extensive discussion about the

overlapping of the IDEA, the RA, and the ADA and determined that

the issue before it, a high school's qualification requirements

31 A-2424-12T1
for valedictorian, was not part of the child's IEP and was not

covered by the IDEA; hence, the plaintiff did not have to

exhaust administrative remedies. Hornstine, supra, 263 F. Supp.

2d at 901-02, 913. In stark contrast, the inclusion class here

is part of the IEP and part of the benefit made available to

A.T. under the IDEA. Thus, Hornstine supports defendants'

assertions that when the dispute is based upon benefits provided

pursuant to the IDEA, the LAD claim is coextensive with the IDEA

and the RA claims. Additionally, plaintiffs' reliance on D.G.

is misdirected because there the school district did not provide

any special education program or benefits, which supported the

plaintiff's RA and LAD claims for failure to provide an

educational benefit. D.G., supra, 559 F. Supp. 2d at 488-90.

No evidence in the record demonstrates that A.T. did not

receive the appropriate educational program from the inclusion

placement at Grant or that any of plaintiffs' rights under the

IDEA were violated. Instead, it was acknowledged that placement

in the inclusion class benefitted A.T., both educationally and

socially. Nor were any facts provided that any other children

did not receive a FAPE or were actually harmed. Rather,

plaintiffs' expert made a sweeping claim that all children

provided with special education services in a non-neighborhood

school or provided with the related service of transportation,

32 A-2424-12T1
are harmed by the stigma of being singled out as disabled. The

expert never evaluated A.T. or any of the other putative class

members nor did she identify the specific harm suffered by these

children. Since A.T. received the educational benefit to which

he was entitled under the IDEA, the Third Circuit found no

evidence of harm under the IDEA or the RA, and we perceive no

actual harm here under the LAD.

In sum, we conclude that for purposes of establishing a

prima facie case of disability discrimination under the LAD

where the facts concern the provision of special education and

related services, the program or benefit measured under the

third element is the provision of a FAPE. To be sure, when the

discrimination claimed does not pertain to special education and

related services, the particular benefit or program will be

different. Because here, the alleged discriminatory component,

the location of the services, was part of the comprehensive IEP

developed to provide A.T. with a FAPE, and did so provide,

plaintiffs have not demonstrated a prima facie claim for

disability discrimination under the LAD.

Affirmed.

33 A-2424-12T1