FOR PUBLICATION

FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BLAIR L. HORNSTINE, : Civil Action No. 03-1953 (FLW)

Plaintiff, :

v. :

TOWNSHIP OF MOORESTOWN, : OPINION

MOORESTOWN BOARD OF :

EDUCATION and SUPERINTENDENT :

OF SCHOOLS PAUL J. KADRI, :

Defendants. :

APPEARANCES:

For Plaintiff:

Edwin J. Jacobs, Jr., Esq.

Erika A. Appenzeller, Esq.

Jacobs & Barbone, P.A.

1125 Pacific Avenue

Atlantic City, NJ 08401

Ira M. Fingles, Esq.

Law Offices of Herbert D. Hinkle

Route 206

2651 Main Street, Suite A

Lawrenceville, NJ 08648

For Defendants:

John B. Comegno II, Esq.

Jennifer L. McCarthy, Esq.

Susan S. Hodges, Esq.

Archer & Greiner

One Centennial Square

Haddonfield, NJ 08033-0968

For Intervenor:

Frances A. Hartman, Esq.

Law Offices of the Attorneys Hartman, Chartered

505 S. Lenola Rd., Suite 121

Moorestown, NJ 08057

In any event, in the fall of 2002, Kadri began an “investigat[ion]” into plaintiff’s 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. Plaintiff’s 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 plaintiff’s 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. Hornstine Cert. at ¶ 2, and Kadri Cert. at Exhibit B.

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 plaintiff’s IEP and disability status, G.P.A., and valedictorian status. Complaint at ¶ 12. In December 2002, the Board contacted plaintiff’s home instructors to “validate and verify” her educational curriculum. Id. at ¶ 13; Steven Grill’s Certification (“Grill Cert.”), Plaintiff’s Reply at Exhibit B, ¶ 9; John O’Neill’s Certification (“O’Neill Cert.”), Plaintiff’s 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 plaintiff’s 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.

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 plaintiff’s graduating class because other students “were not afforded the accommodations which [p]laintiff enjoyed.” Id. at ¶ 34. Specifically, Kadri contends that “[p]laintiff 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 plaintiff’s 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 be able to secure a high grade in a difficult in-school class, she either withdrew from the class or sought home-school instruction. Id. at ¶ 28. He also suggests that plaintiff’s father hand-selected her home instructors. Id. at ¶ 29. Lastly, Kadri asserts that plaintiff gained an unfair advantage over her non-disabled classmates because she was not required to take physical education, and was instead able to enroll in a higher-weighted course. Id. at ¶ 30.

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 Plaintiff’s IEP, Complaint at Exhibit A. Plaintiff’s 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 plaintiff’s 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.”), Plaintiff’s 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 plaintiff’s IEP team and treating physician that such a reduction in course load was medically necessary. Plaintiff’s IEP, Complaint at Exhibit A. Similarly, plaintiff waived out of physical education because her physician determined it was necessary. See Kadri Cert. at ¶ 22.

Moreover, a comparison of plaintiff’s transcript with that of K.M. reveals that he had a mathematical advantage over plaintiff. Statistically, he took more weighted courses than plaintiff. In the four years at Moorestown High School, plaintiff took 8 AP courses whereas K.M. took 10, and plaintiff took 15 Honors courses while K.M. took 12. AP courses are weighted more heavily than Honors courses. An AP class is worth one grade point more than a standard class, and an Honors class is worth one-half grade point more than a standard class. For example, an A+ in standard Latin is a 4.3; an A+ in Honors Latin is a 4.8, and an A+ in AP Latin is a 5.3. Since K.M. completed 2 more AP courses than plaintiff, and she completed only 3 more Honors classes than he, compared to him, plaintiff was at a weighted course disadvantage.

In a strained and relentless effort to further show that plaintiff’s 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 plaintiff’s 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 plaintiff’s re-calculated G.P.A. would have been lower than K.M.’s - by five thousandths of a point. Id. at ¶¶ 12-13. The fact that Kadri’s speculative calculations, theoretical curricula, and hypothetical alternative transcript can produce only a .005 difference 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.

On May 5, 2003, defendants filed a motion to dismiss plaintiff’s 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, plaintiff’s 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 K.M. 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 of claim 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’ 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 plaintiff’s 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, 82 F.R.D. 122, 126 (D.N.J. 1979); Paschall v. Mayone, 454 F. Supp. 1289, 1298 (S.D.N.Y. 1978)). See also Fuchilla v. Layman, 109 N.J. 319, 331 (1988) (recognizing that New Jersey’s Tort Claims Act notice provision cannot bar federal claims); Schneider v. Simonini, 163 N.J. 336, 372 (2000) (same).

In addition, defendants failed to note the United States Supreme Court decision in Felder v. Casey, 487 U.S. 131, 134-38 (1988), which held that state tort claims acts cannot impinge upon federal rights brought under 42 U.S.C. §1983. Defendants also did not cite this District’s decision in Forcella v. City of Ocean City, 70 F. Supp. 2d 512, 514 (D.N.J. 1999), which held that the Tort Claims Act notice provision does not bar claims brought under the New Jersey Law Against Discrimination. Since the Tort Claims Act is totally inapplicable to federal and NJLAD claims, so too, it is immaterial whether plaintiff delineated her federal claims in her tort claims notice. Therefore, contrary to defendants’ assertions, plaintiff’s federal and NJLAD claims may proceed.

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, 416 U.S. 312, 316 (1974). The following factors are to be considered in determining whether plaintiffs can meet the Constitutional requirements of standing:

1. The plaintiff must have suffered an injury in fact- 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

Both the plain language of N.J.S.A. 18A:6-9 and New Jersey case law compel the conclusion that the Commissioner does not have jurisdiction over plaintiff’s myriad claims. Because none of plaintiff’s claims “aris[e] under the school laws” of New Jersey, it follows that N.J.S.A. 18A:6-9 does not grant the Commissioner authority to adjudicate the types of claims raised here. New Jersey case law further supports this literal interpretation of N.J.S.A. 18A:6-9. For example, the court in Picogna v. Bd. of Ed. of the Twp. of Cherry Hill, 249 N.J.Super. 332 (App. Div. 1991), addressed the Commissioner’s authority under N.J.S.A. 18A:6-9 to adjudicate a breach of contract claim brought by a public school employee. In rejecting the argument that the Commissioner was authorized to hear the claim because it was related to school laws and personnel, the Court employed a literal interpretation of N.J.S.A. 18A:6-9 to conclude that the Commissioner does not have authority to hear these sorts of claims. Id. at 335 (“Whether the petitioner’s employment was wrongfully terminated under the contract . . . is for the court, not the Commissioner, to decide.”). Similarly, the court in Galbraith v. Lenape Reg. High Schl. Dist., 964 F.Supp. 889 (D.N.J. 1997), concluded that “the Commissioner of Education is not competent to decide [New Jersey Law Against Discrimination] or breach of contract claims since the claims do not ‘arise under the school laws.’” Id. at 895. This Court sees no reason why the literal interpretation employed by these courts would not apply to each of plaintiff’s claims here.[6] Accordingly, the Commissioner of Education does not have jurisdiction under N.J.S.A. 18A:6-9 to hear plaintiff’s claims.

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., 95 F.3d 272, 281-82 (3d Cir. 1996) (ADA and Rehabilitation Act claims); Hochman v. Bd. of Ed., 534 F.2d 1094, 1097 (3d Cir. 1976) (section 1983 claims). However, in cases in which it appears that a plaintiff has cloaked an IDEA claim as an ADA, Rehabilitation Act, or Section 1983 action in an effort to avoid application of the IDEA’s distinct exhaustion requirement, courts will require that plaintiff to exhaust the state administrative remedies mandated for IDEA claims. Jeremy H., 95 F.3d at 281-82. Courts look unfavorably upon plaintiffs and attorneys who employ this strategy because it undermines Congress’ goal of providing comprehensive protections and benefits for disabled students under the IDEA. Rose v. Yeaw, 214 F.3d 206, 209 (1st Cir. 2000); O’Hayre v. Bd. of Ed. Of Jefferson Cty., 109 F.Supp.2d 1284, 1292 (D.Colo. 2000).

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, 722 F.2d 1310, 1318 (7th Cir. 1983). See Walker v. Dist. of Columbia, 157 F. Supp. 2d 11, 36 (D.D.C. 2001) (affirming this principle); A.W. v. Marlborough Co., 25 F. Supp. 2d 27, 31-32 (D.Conn. 1998) (same). See also N.L. v. Knox Cty. Schls., 315 F.3d 688, 695 (6thCir. 2003) (noting distinction between the IDEA and the Rehabilitation Act); McGraw v. Bd. of Ed. of Montgomery Co., 952 F. Supp. 248, 252-54 (D.Md. 1997) (analyzing separately plaintiff’s same allegations under the IDEA and, together, the ADA and the Rehabilitation Act). The ADA and Rehabilitation Act provide relief from discrimination while the IDEA provides relief from inappropriate educational placement decisions, regardless of discrimination. J.D. v. Pawlet Schl. Dist., 224 F.3d 60, 70 (2d Cir. 2000); Sellers v. Schl. Bd. of the City of Manassas, 141 F.3d 524, 528-29 (4th Cir. 1998); A.W., 25 F. Supp. 2d at 31. This distinction is illustrated in the instant case by the fact that plaintiff was afforded the key benefit secured by the IDEA—a free, appropriate public education—yet she will be precluded, on account of her disability, from fully enjoying a benefit she rightfully earned unless this Court grants the requested relief. She has not linked her request to be named sole valedictorian, nor her request for damages, with the accommodations to which she was entitled under the IDEA.[8] Rather, it is defendants who rely upon plaintiff’s accommodations in their ill-conceived attempt to justify the actions she asserts constitute discrimination under the ADA and the Rehabilitation Act. Therefore, this Court holds that plaintiff is not seeking redress under the IDEA and is not subject to its exhaustion requirement. Accord O’Hayre, 109 F. Supp. 2d at 1294 (excusing exhaustion because discrimination claims “not provided for in the IDEA.”).

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, 87 F.3d 80, 88 (3d Cir. 1996) (discussing IDEA’s futility exception); Taylor v. Vermont Dept. of Ed., 313 F.3d 768, 789 (2d Cir. 2002) (same); River Dell Educ’l Ass’n v. River Dell Bd. of Ed., 122 N.J.Super. 350, 353 (Law Div. 1973) (discussing New Jersey’s futility exception); Valent v. New Jersey State Bd. of Ed., 114 N.J.Super. 63, 70 (Ch. Div. 1971) (citing Matawan v. Monmouth County Tax Bd., 51 N.J. 291, 296 (1968)) (same). It is undisputed that the Department of Education rebuffed plaintiff’s attempt to obtain relief. In its letter responding to plaintiff’s application for emergent relief, the Department of Education stated that her request

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.

In Alexander v. Choate, 469 U.S. 287 (1985), the U.S. Supreme Court addressed what it means for an individual to be discriminated against under Section 504. The plaintiffs in Alexander were disabled medicaid recipients who brought a class action seeking declaratory and injunctive relief under Section 504 for the allegedly discriminatory acts of the State of Tennessee in reducing the number of days for which the state’s medicaid program would pay hospitals on their behalf. The Court characterized plaintiffs’ theory as one of disparate impact and, while recognizing that such a theory was appropriate under Section 504, went on to hold that plaintiffs had not shown that the discriminatory impact they allegedly suffered was a result of discrimination based on their disability. Id. at 303; see also Helen L., 46 F.3d at 336 (discussing Alexander). In reaching this conclusion, the Court found it important that the reduction did not have a “particular exclusionary effect on the handicapped.” Alexander, 469 U.S. at 302. Instead, the reduction was “neutral on its face, [did] not distinguish between those whose coverage will be reduced and those whose will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely of having.” Id.

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., 178 F.3d 968 (8th Cir. 1999). In that case, a special needs student brought suit under Section 504, alleging that she was denied the benefit of her school district’s intra-district transfer program on account of her disability. The defendant school district had admitted the plaintiff into the transfer program, but required her to provide her own transportation in order to participate in it. Id. at 972. The Eighth Circuit held that the school district’s transportation policy was not discriminatory because the policy was neutrally applicable to all students regardless of disability and “unrelated to disabilities and misconceptions about them.” Id.

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:

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., 138 F.3d 754, 756 (8th Cir. 1998) (suggesting that plaintiff may show discrimination by calling into question the truthfulness of a defendant’s stated reasons for its actions); Grube v. Bethlehem Area Schl. Dist., 550 F. Supp. 418, 424 (E.D.Pa. 1982) (finding discrimination, in part, based on challenge to accuracy of defendant’s stated justification). Kadri’s numerous calculations of plaintiff’s weighted G.P.A. based upon hypothetical curricula he crafted for her further shows the discriminatory intent underlying his actions. His calculations suggest that her weighted G.P.A. would have been only five thousandths of a point less than that of the intervenor. Kadri. Supp. Cert. at ¶¶ 12-13. This difference belies Kadri’s contention that the proposed amendment was designed to remedy a “fundamental unfairness.” Defendants’ Opposition to Order to Show Cause at 9.

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, “[a]ntidiscrimination 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 (quoting Brief for United States as Amicus Curiae in that case). Therefore, this sort of approach would inappropriately discriminate against students entitled to home instruction as an accommodation under the IDEA. Moreover, such an action would have the effect of diluting the affirmative rights granted special needs students under Section 504 and the IDEA—rights that were deemed necessary by Congress in order to ensure that special needs students could compete with their non-special needs counterparts on an equal basis. See id. at 304; 34 C.F.R. § 104.33.

In T.M. v. Mercer County Junior & Senior High Schl., OAL Dkt. No. EDS 4317-02S (2002) available at http://www.lawlibrary.rutgers.edu/oaldecisions/initial/eds04317-02_1.html (visited May 5, 2003), a special needs student challenged his local school board’s decision to prohibit him from attending his high school graduation ceremony and from marching in the processional for disciplinary reasons. Administrative Law Judge Israel D. Dubin reasoned that:

[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.

[1] K.M.’s transcript was submitted under seal to protect his privacy interests.

[2] 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 was constrained in her selection of AP courses.

[3] Plaintiff has since dismissed her claims against the Township of Moorestown.

[4] At that time, the Court reserved its right to file a more formal written opinion, pursuant to L. R. CIV. P. 52.1.

[5] 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, 536 U.S. 273, 290 (2002).

Therefore, this claim will not be considered for the purposes of this exhaustion analysis.

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:14-1.1 - 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. Hornstine, 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 ¶26 (“The aforementioned conduct of defendant Paul J. Kadri constituted discrimination in violation of the Rehabilitation Act of 1973.”).

[6] 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, 117 N.J. at 441-42. See also Jenkins v. Twp. of Morris Schl. Bd., 58 N.J. 483 (1971); Booker v. Plainfield Bd. of Ed., 45 N.J. 161 (1965) (racial segregation cases). Disability-based discrimination claims, such as those presented here, are noticeably absent from the types of claims listed in N.J.S.A. 18A:36-20 and, therefore, are not within the Commissioner’s jurisdiction.

[7] 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., 276 F.3d 52, 59 (1st Cir. 2002) (quoting 20 U.S.C. § 1415(i)(2)) (alterations in original). See also Susan N. v. Wilson Schl. Dist., 70 F.3d 751, 763 (3d Cir. 1995) (“[This section] was enacted to reaffirm the viability of section 504 [of the Rehabilitation Act], 42 U.S.C. §1983, and other statutes as separate vehicles for ensuring the rights of handicapped children.”).

[8] The Second Circuit’s decision in Polera v. Bd. of Ed. of Newburgh Enlarged City Schl. Dist., 288 F.3d 478 (2d Cir. 2002), is factually distinguishable for this reason. The plaintiff in that case was seeking redress under the IDEA for “failure to provide her with the free appropriate public education, including study materials, compensation for tutoring, and recognition of academic achievements, to which she was entitled as a disabled student.” Id. at 480. The court viewed the plaintiff’s request for academic honors as an outgrowth of her free, appropriate public education claim and, thus, subject to the IDEA. Id. at 486. The plaintiff here, by contrast, does not allege that she was denied a free, appropriate public education or the right to compete for academic honors, but that, after she qualified for an honor, she was then subjected to discriminatory treatment on account of the accommodations she had been afforded throughout her education. Moreover, this Court questions the Second Circuit’s conclusion that a complaint regarding academic honors is redressable under the IDEA because the accordance of such honors goes beyond the “basic floor of opportunity” that Congress intended to provide disabled students through the IDEA. See Bd. of Ed. of the Hendrick Hudson Ctrl. Schl. Dist. v. Rowley, 458 U.S. 176, 192 (1982) (“[T]he intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.”); Polk v. Ctrl. Susquehanna Intermed. Unit 16, 853 F.2d 171, 182 (3d Cir. 1988) (stating that IDEA assures only that special needs students receive more than a de minimis educational experience). See also 20 U.S.C. §1415(b)(1)(E) (stating that students shall be granted an opportunity to present complaints under the IDEA only “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free, appropriate public education to such child.”).

[9] 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.

[10] In light of the active role that Superintendent Kadri played in investigating plaintiff’s 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.

[11] 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.

[12] 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, plaintiff’s AP Calculus home instructor appears to have graded plaintiff more stringently than her in-class teacher. See Nothdurft Cert. at ¶¶ 5-10. These examples buttress this Court’s finding that individual teachers often employ different grading standards.

[13] 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, 117 N.J. at 441-42.

[14] 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.

[15] 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, 287 F.3d at 146-50 (holding that students suffering from chronic fatigue syndrome and other physical disabilities are entitled to protection under the IDEA, Rehabilitation Act, and ADA to the same extent as learning-disabled students), nonetheless, public comment, which obviously infected Superintendent Kadri, unfairly implies the contrary.

[16] 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.