Legal Memorandum: Unilateral Parental Placements in NJ

Issue: Whether unilateral parental placements and subsequent requests for tuition reimbursement are governed by the Naples Act in a special education matter in New Jersey.

“When the evidence ‘is so one-sided that one party must prevail as a matter of law,’ the trial court should not hesitate to grant summary judgment.”  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252). 

The Naples Act provides:

Whenever a child study team determines that a suitable special education program for a child cannot be provided pursuant to subsection a., b., c., d., e., f., g. or h. of this section, and that the most appropriate placement for that child is in an academic program in an accredited nonpublic school within the State or, to meet particular circumstances, in any other state in the United States, the services of which are nonsectarian, and which is not specifically approved for the education of handicapped pupils, that child may be placed in that academic program by the board of education, with the consent of the commissioner, or by order of a court of competent jurisdiction. 

N.J.S.A. 18A:46-14(h).  While the Act does refer to an “accredited” nonpublic academic program, the plain language of the act imposes that requirement only upon placements made “[w]henever a child study team determines that a suitable [in-district] special education program for a child cannot be provided” and “by the board of education, with the consent of the commissioner, or by order of a court of competent jurisdiction.”  N.J.S.A. 18A:46-14(h) […]