Legal Memorandum: ALJ Plenary Hearing of a FAPE Issue

Issue: Can an ALJ plenary hearing in New Jersey be stayed if the evaluations necessary to resolve a FAPE issue will not be conducted, the FAPE issue will be resolved by a motion for summary judgment on the issue, and a student will receive out-of-district education as soon as he becomes accepted?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State), Education Law
Keywords: FAPE issue; ALJ plenary hearing stay; Motion for summary judgment
Jurisdiction: New Jersey
Cited Cases: 62 F.3d 520; 96 F.3d 78
Cited Statutes: N.J.A.C. 6A:14-2.7(e), 6A:14-3.7(c)(4); 20 U.S.C. § 1414(d)(3)
Date: 03/01/2005

The following authorities are relevant to this issue:

  • N.J.A.C. 6A:14-2.7(e) (“A final decision shall be rendered by the administrative law judge not later than 45 calendar days after the receipt of the request for the due process hearing by the Office of Special Education Programs unless a specific adjournment is granted by the administrative law judge in response a request by either party to the dispute.”).
  • Carlisle Area Sch. v. Scott P., 62 F.3d 520 (3d Cir. 1995) (IDEA’s 45-day final order requirement can be excepted by court order when such an order furthers to educational goals protected by the IDEA).
  • Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78 (3d Cir. 1998) (A motion for stay pending appeal in federal court is similar to a request for a temporary injunction.).
  • N.J.A.C. 6A:14-3.7(c)(4) (“When developing the IEP, the IEP team shall: . . . 2.  Consider the results of the initial evaluation or most recent evaluation of the student . . . .”).
  • 20 U.S.C. § 1414(d)(3) (“In developing each child’s IEP, the IEP Team, subject to subparagraph (C), shall consider— (i) the strengths of the child and the concerns of the parents for enhancing the education of their child; and (ii) the results of the initial evaluation or most recent evaluation of the child.”).


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