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9 N.J.A.R. 159

H., M. v. East Windsor Regional School District
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Citation: 9 N.J.A.R. 159
Decision Date: 1986
Agency: DIVISION OF SPECIAL EDUCATION
Synopsis: A 16 year old student, who had been classified as perceptually impaired, filed an application to return to his previously established course of study during the pendency of a dispute over his proper classification and placement. The administrative law judge assigned to the case found that the student had been involved in a lunch room fight with an assistant principal. Subsequently, the student was re-evaluated as emotionally disturbed and his placement changed from mainstreamed classes with resource room instruction to a half-day, out-of-district school coupled with a half-day of vocational school. The judge noted that N.J.A.C. l:6A-3.1(e) establishes a 'three- prong' test for the granting of emergency relief pending a decision. Under that test, a petitioner must show that: (1) the application has a masonable probability of ultimately prevailing on the merits; (2) serious harm will result to the student, or the student's educational program will be seriously harmed if the relief is not granted; and, (3) the relief requested is narrowly defined and will not cause un- reasonable expense or substantial inconvience. The judge observed that while the first prong of the test, the 'likelihood of success' element, might be the standard test for emergency relief, the 'stay put' provision of special education law took precedence over it. Thus, if the grant of emergency relief would restore the status quo, it should be granted regardless of the outcome of the 'likelihood of success' test. Accordingly, the judge concluded that he need only determine if the 'stay put' provision should be overridden because of legitimate concerns that restoring the student to his prior placement might result in a threat to safety. M.H.v. East Windsor School District Finding that the incident was an isolated one and one that was likely to occur with any student, the judge concluded that the Board's evidence was insufficient to permit a finding of possible danger. Thus, the student was returned to mainstream placement with resource room assistance pending the outcome of the matter. John Beranbaum, Assistant Deputy Public Advocate, for petitioner (Alfred A. Slocum, Public Advocate, attorney) David H. Coates, Esq., for respondent (Turp, Coates, Essl & Driggers, attorneys)
Citation Tracker rejected-Dept. of Health; affirmed -App. Div., A-213-85, 4/20/87 (unreported) [Updated through 1991]