In G.L. v. Verona Borough Board of Education, No. 2:23-cv-00938, 2024 WL 3549060, 124 LRP 28443 (D.N.J. July 26, 2024) (unpublished), the district court addressed disputes concerning the appropriate placement of a young student with multiple disabilities and, more centrally, the admissibility of secret audio recordings made by the parents during the student’s public school placement. Although the court did not resolve the merits of the placement dispute, it remanded the case for further administrative proceedings after concluding that the recordings were improperly excluded from the due process hearing.
The student entered the Verona School District at age five and was placed in a Learning, Sensory, and Social (LSS) class with related services. The program relied on applied behavior analysis (ABA) principles and used the ReThinkEd curriculum. An individualized education program (IEP) was developed for kindergarten for the 2019–20 school year and implemented in the fall. Early in the school year, the parents raised concerns about the student’s increasing self-stimulation behaviors before school, dependence on an iPad, school aversion, and limited interaction with neurotypical peers. The district offered a form of reverse inclusion, allowing periodic interaction between general education students and the LSS class.
As the year progressed, the parents obtained outside evaluations and requested an out-of-district placement with more intensive ABA services. The student remained in the LSS program through the spring, when instruction shifted to remote services due to the COVID-19 pandemic. The transition to remote learning was marked by technical and implementation problems, and the parents discontinued participation in remote instruction in May 2020. Although the student reportedly made some progress, he achieved only one of thirty-eight IEP goals during the school year.
At a June 2020 meeting, the parents provided the district with outside evaluation reports and notified the district of their intent to place the student at DATA Group, a behavioral service provider, and to seek reimbursement. The district proposed a new IEP in July 2020 that incorporated many of the evaluators’ recommendations. The parents proceeded with the private placement and filed a due process complaint.
Before the hearing, the parents disclosed that they had placed an audio recording device in the student’s belongings on several school days during the 2019–20 school year in an effort to understand the source of the student’s school aversion. The district moved to exclude the recordings, and the administrative law judge (ALJ) granted the motion. Following the hearing, the ALJ concluded that the district did not deny the student a free appropriate public education (FAPE) during the 2019–20 school year and that the proposed 2020 IEP would have offered FAPE. The ALJ also determined that any implementation issues did not rise to a denial of FAPE and that the parents failed to timely share relevant information.
On review, the district court denied both parties’ motions for summary judgment, concluding that remand was required before the merits could be resolved. The court rejected the ALJ’s determination that the recordings were inadmissible under the New Jersey Wiretapping and Electronic Surveillance Act. The court explained that the statute permits vicarious consent by a parent on behalf of a minor where the parent has an objectively reasonable belief that recording is necessary and in the child’s best interests. Given the student’s disabilities, communication difficulties, and documented school aversion behaviors, the court found that the parents met that standard.
The court also rejected reliance on district policy prohibiting recording on school grounds without consent as a basis for exclusion, explaining that even if the policy were violated, it did not justify excluding relevant evidence from an administrative hearing. The court noted that it had not reviewed the recordings themselves but summarized the parents’ description of their contents, which allegedly reflected limited engagement with the student, inappropriate remarks by aides, and prolonged distress. The court remanded the matter to the ALJ to determine whether the recordings were authentic and unaltered, applying New Jersey’s evidentiary standards for admissibility.
The decision reflects that evidentiary rulings can materially affect the adjudication of placement disputes, that parental efforts to document a child’s educational experience may be admissible where supported by state law, and that exclusion of potentially probative evidence may warrant remand before the merits of a FAPE claim can be resolved.