SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3783-19

D.O., individually, and on behalf

of M.O., a minor child,

Plaintiff-Appellant,

v.

JACKSON TOWNSHIP

BOARD OF EDUCATION,

Defendant-Respondent.

_________________________

Argued May 3, 2021 – Decided July 19, 2021

Before Judges Sabatino, Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-1738-16.

John Rue argued the cause for appellant (John Rue & 

Associates, LLC, attorneys; John Rue, Donald A. 

Soutar, and Kenneth R. Walk, on the briefs).

Katherine A. Gilfillan argued the cause for respondent 

(Schenck, Price, Smith & King, LLP, attorneys; 

Katherine A. Gilfillan, of counsel and on the brief; John 

D. McCarthy, on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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PER CURIAM

This matter arose as a dispute over efforts by a parent, appellant D.O., to 

obtain from respondent, Jackson Township Board of Education ("the District" 

or "defendant"), certain public school records concerning her disabled son, M.O. 

The parent requested the records in 2015, and from August 2015 through March 

2016 the District provided a series of records to her. The District certified it

turned over all of the then-existing records, but the parent disagrees. She 

contends that some records are missing and surmises that other communications 

must have been documented and were not supplied.

Through administrative processes, the parent obtained from the District

certain substantive educational services for her son. Nonetheless, she pursued 

litigation against the District in the Law Division, contending she was entitled 

to what is described as a "due process" hearing under 20 U.S.C. § 1415(f) 

concerning the sought-after alleged additional records. The Law Division 

rejected her claims, concluding that the applicable laws do not provide a right 

to such a stand-alone due process hearing in which the dispute solely concerns

the turnover of school records. This appeal ensued.

For the reasons explained in this opinion, we affirm the trial court's 

dismissal of the parent's lawsuit. As a threshold matter, this records case appears 
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to be moot, given the trial court's finding that the District supplied the parent 

with all of the requested records in its files.

Even assuming the case is not moot, or that an exception to the mootness 

limitation is warranted, we are unpersuaded that appellant has a right to a standalone due process hearing where there is no related substantive dispute pending 

about a deprivation of educational services. Among other things, we reject 

appellant's argument that dicta within footnote 6 of the Supreme Court's majority 

opinion in Fry v. Napoleon Community Schools, 580 U.S. ___, 137 S. Ct. 743, 

754 n.6 (2017), entitles her to such a due process hearing in this stand-alone 

setting. Appellant's remaining arguments likewise lack merit.

I.

We need not detail comprehensively the lengthy and complicated 

background of this case. The parties are surely familiar with the procedural and 

factual history, and therefore we will condense it here.

Plaintiff-appellant is the mother of M.O., a minor who is eligible for 

special education services under the Individuals with Disabilities Education Act 

("IDEA"), 20 U.S.C. §§ 1400-1482. They reside in Jackson Township. The 

District is responsible for educating students who are domiciled in Jackson 

Township. 
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The First Due Process Complaint 

In July 2015, plaintiff filed a due process complaint with the New Jersey 

Department of Education ("NJDOE"). The complaint was directed to the 

Department's Office of Special Education Programs ("OSEP"), alleging that the 

District failed to provide M.O. with a free and appropriate public education 

(known as a "FAPE") as required by the IDEA. Although it is relevant for 

contextual purposes, this first due process complaint is not the subject of the 

instant appeal. 

OSEP transmitted D.O.'s first due process complaint to the Office of 

Administrative Law ("OAL"), where the parties each moved for summary 

decision. 

On September 2, 2016, an Administrative Law Judge ("ALJ") granted 

plaintiff's motion for summary decision, upon concluding that the District had 

failed to provide M.O. with a FAPE between March 6, 2013, and October 20, 

2015. The ALJ further concluded that plaintiff was entitled to a $600 

reimbursement for an independent psychiatric evaluation of M.O. as well as 
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compensatory education for M.O. to restore him "to the educational level where 

he would have been but for the denial of FAPE."

1

 

The Records Request

On July 13, 2015, six days after filing the first due process complaint, 

plaintiff sent a certified letter to Dr. Robert Cerco, Director of Special Education 

for the District, requesting 

a complete copy of [M.O.'s] general and special 

education records including but not limited to the 

following: report cards, progress reports, Child Study 

Team recommendations, attendance records, log and 

records of teachers and related service providers, IEPs

[individualized educational plans], correspondence 

(including internal emails) and any other records 

maintained by Jackson School District and related to 

[M.O.'s] education. 

[(Emphasis omitted).]

Plaintiff's letter referenced the first due process complaint, asserting she needed 

the requested records in advance of the administrative hearing. In response, the 

1

 In March 2017, plaintiff filed an enforcement action in the United States 

District Court and was awarded $388,837.44 in attorney fees under the feeshifting provision of the IDEA, 20 U.S.C. § 1415(i)(3). D.O. v. Jackson Twp. 

Bd. of Educ., Dkt. No. 17-1581, 2019 U.S. Dist. LEXIS 72875 (D.N.J. Apr. 30, 

2019). We have been advised by counsel that the parties have since settled 

issues in federal court relating to educational services, although the terms of the 

settlement do not bear on the records issues presented in this appeal. 
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District initially produced two sets of records on August 24 and August 25, 

2015. 

The Second Due Process Complaint That Is the Subject of This Appeal

On September 9, 2015, plaintiff's attorney filed a second due process 

complaint with OSEP, alleging that the District failed to provide a complete 

copy of M.O.'s student records "as required by 34 C.F.R. 300.613," an IDEA 

regulation. She sought "access to a complete copy" of the records, as well as a 

certification from defendant confirming that it has produced a complete copy 

"as required by 34 C.F.R. 300.613" and "N.J.A.C. 6A:32.2-1 & [6A:32-]7.5," 

state regulations implementing the New Jersey Pupil Records Act ("NJPRA"), 

N.J.S.A. 18A:36-19. The second due process complaint reserved plaintiff's 

"right to seek attorneys' fees and costs incurred in litigating this action, pursuant 

to 20 U.S.C. § 1415 [IDEA]." OSEP transmitted the matter to the OAL. 

The second due process complaint neither mentioned the pending first due 

process complaint, nor did it allege that the District had denied M.O. a FAPE. 

However, it did include plaintiff's July 13, 2015 records request letter as an 

exhibit and referenced it in the statement of facts.2

2

 In her briefs, plaintiff claims that she "sought to consolidate" the second due 

process complaint with the first, but the record does not contain any evidence of 

the filing of such a motion or of its denial. 
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The District filed a "sufficiency challenge" to the second due process 

complaint with OSEP pursuant to N.J.A.C. 6A:14-2.7. That regulation requires 

requests for due process in this educational context to include the child's name, 

address, date of birth, school of attendance, relevant facts, the specific disputed 

issues, and what relief is being sought. N.J.A.C. 6A:14-2.7(c). The District

sought dismissal of the second due process complaint because it "allege[d] only 

perceived failures by [the District] to supply student records" and "claims 

regarding the provision of copies of student records are not the proper subject 

of a due process hearing." 

On September 15, 2015, ALJ Edward J. Delanoy, Jr. concluded that the 

second due process complaint was sufficient for the screening purposes of 

N.J.A.C. 6A:14-2.7(c). The ALJ explained that "[w]hile [the District] may be 

correct . . . that the . . . request to supply student records is not available through 

due process in a special education case, this is not a factor to be consider ed in a 

sufficiency challenge" but may be raised "in a summary decision motion brought 

during the pendency of the due process" proceedings. The matter was assigned 

to a different ALJ for further proceedings. 

The following day, the District filed a motion to dismiss the second due 

process complaint, which plaintiff opposed. 
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On March 21, 2016, ALJ John S. Kennedy granted the District's motion 

to dismiss the second due process complaint, which the ALJ treated as a motion 

for summary decision under N.J.A.C. 1:1-12.5. The ALJ found as fact that it 

was "undisputed . . . that the sole issue raised in the [second due process 

complaint] is [the District's] alleged failure to provide [plaintiff] a copy of 

M.O.'s student records" and that "no issue of material fact exists that precludes 

summary decision." According to the ALJ, the only legal issue to be decided 

was "whether a due process hearing may be requested to obtain copies of student 

records."

ALJ Kennedy concluded that "[n]either N.J.A.C. 6A:14-2.7(a)," a state 

regulation implementing the IDEA, "nor 34 C.F.R. 300.507," a federal 

regulation implementing the IDEA, "provide that a demand for providing copies 

of student's records may be the subject of a due process hearing" and that the 

relief sought "is not appropriately addressed in a due process hearing." 

Although ALJ Kennedy acknowledged the pendency of the first due process 

complaint, which involved "a disagreement between the parties regarding M.O.'s 

special education placement," he concluded that the first due process complaint 

was "a separate due process petition not currently pending before" him. 
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The Initial Superior Court Proceedings in Ocean County

In June 2016, plaintiff filed an Order to Show Cause and Complaint in the 

Law Division (the "Ocean County complaint") challenging the ALJ's dismissal 

of the second due process complaint. The Ocean County complaint alleged, 

among other things, that the court had subject matter jurisdiction "pursuant to 

34 C.F.R. § 300.516(a)," an IDEA regulation, and that the District had violated 

plaintiff's rights under the IDEA, N.J.S.A. 18A:46-1 to -55, and related federal 

and state regulations including 34 C.F.R. Part 300 and N.J.A.C. 6A:14, by 

"failing to provide D.O. with access to M.O.'s student records." 

Plaintiff sought various forms of relief in the Ocean County complaint, 

specifically: (1) a finding "that the OAL has jurisdiction to adjudicate cases 

involving failure to provide records to a parent under IDEA"; (2) an order 

compelling the District to provide plaintiff "with access to a complete copy of 

M.O.'s Student Records," including all records as they are created "until the 

resolution of all pending actions between the parties"; (3) an order compelling 

the District to certify that it has provided plaintiff with all of M.O.'s student 

records; and (4) attorneys' fees and costs pursuant to 20 U.S.C. § 1415.

In its answer to the Ocean County complaint, the District maintained that 

ALJ Kennedy's decision was correct. Among other things, the District submitted 
10 A-3783-19

two certifications. One came from Dr. Cerco, who certified that the District "has 

provided all of the student records that it has in its possession to [its] attorney 

. . . for the purpose of disclosure to the plaintiff." Another certification was

submitted from Joanne L. Butler, Esq., who certified that her law firm (which 

represented the District) had already "provided an extensive number of 

documents concerning M.O. to plaintiff's counsel over the past year, many of 

which plaintiff does not acknowledge," on the following nine dates: (1) August 

24, 2015; (2) August 25, 2015; (3) January 27, 2016; (4) February 1, 2016; (5) 

February 6, 2016; (6) February 8, 2016; (7) February 23, 2016; (8) March 18, 

2016; and (9) March 30, 2016.

On September 23, 2016, Judge Arnold B. Goldman denied the Order to 

Show Cause, affirmed ALJ Kennedy's March 21, 2016 decision, and dismissed 

the Ocean County complaint for failure to exhaust administrative remedies 

available under N.J.A.C. 6A:3 for persons who are denied access to education 

records. Judge Goldman also ruled that the matter was moot because plaintiff's 

counsel was unable to specify what records were missing from what the District

had already produced. Because the parties disagreed as to its form, the court did 

not enter its final order dismissing the Ocean County complaint until a month 

later, on November 9, 2016. 
11 A-3783-19

The First Appeal (A-1240-16)

In November 2016, plaintiff filed a Notice of Appeal (the "First Appeal"), 

No. A-1240-16, challenging the trial court's November 9, 2016 dismissal of the 

Ocean County complaint. 

Plaintiff moved to consolidate the First Appeal with another appeal 

involving school records access, L.R. v. Camden City Public School District, 

No. A-3972-14, for purposes of oral argument. In a sua sponte global order 

entered a month earlier affecting numerous pending appeals with related legal 

issues, this court had identified the L.R. appeal as one of four cases that would 

be heard back-to-back concerning "accessibility to school records under the 

Open Public Records Act ('OPRA'), N.J.S.A. 47:1A-1 to -13, and several other 

related issues." 

Upon considering the District's opposition to consolidating plaintiff's 

matter with L.R., we denied plaintiff's motion and stayed the scheduling of oral 

argument in the First Appeal until we decided L.R. and the three other back-toback cases. 

After we issued a published decision in L.R. granting relief to the records 

requestors in part and denying relief in part, the Supreme Court granted 

certification limited to two issues. The Court thereafter affirmed our decision
12 A-3783-19

per curiam with an equally divided Court. See L.R. v. Camden City Pub. Sch. 

Dist., 452 N.J. Super. 56 (App. Div. 2017), certif. granted, 233 N.J. 219 (2018)

and 233 N.J. 222 (2018), aff'd by an equally divided Court, 238 N.J. 547 (2019). 

In its 3-3 decision in L.R., the Court did note "an urgent need for greater 

clarity in the law governing public access to educational records," specifically 

with respect to the NJDOE's regulations implementing NJPRA. 238 N.J. at 576

(Patterson, J., concurring). 

On January 26, 2017, while the Supreme Court proceedings were pending, 

this court entered a global order on its own motion staying "all appeals," 

including plaintiff's First Appeal, "involving issues concerning accessibility to 

school records under [OPRA] . . . and other related issues." The District moved 

to vacate the stay, as it believed this particular matter "had been improperly 

consolidated with the OPRA litigation" since "OPRA was never an issue raised, 

briefed or decided." We denied the motion to vacate the stay, upon determining 

that "[t]he issues in this appeal could be affected by the Supreme Court's 

ultimate disposition" in L.R. 

After the Supreme Court issued its divided ruling in L.R., we issued an 

order on July 19, 2019 remanding "[a]ll appeals previously subject to the global 

stay order . . . to the trial court for reconsideration in light of the Supreme Court's 
13 A-3783-19

opinions and the Appellate Division opinion, as modified." The Appellate 

Division's order provided that "[n]othing in this order shall interfere with the 

expeditious promulgation of revised administrative rules by the Department of 

Education, as encouraged by the Supreme Court."

The Remand to Ocean County Superior Court

The matter was revived on remand in the Law Division. In February 2020, 

plaintiff moved for summary judgment. Relying primarily upon dicta in 

footnote six of the majority opinion in Fry, 580 U.S. ___, 137 S. Ct. at 754 n.6, 

plaintiff sought a remand to the OAL for a due process hearing pursuant to 

N.J.A.C. 6A:14-2.7 to address the District's alleged failure to provide her with 

a complete copy of M.O.'s student records. The District cross-moved for 

summary judgment, contending that plaintiff's reliance upon Fry was 

"misguided," that she was not entitled to a due process hearing based upon a 

dispute solely involving student records, and that she "should instead file a 

petition of appeal directly with the Department of Education Bureau of 

Controversies and Disputes" pursuant to N.J.A.C. 6A:3-1.3(a). The summary 

judgment motion was heard by Judge Robert E. Brenner.
14 A-3783-19

On May 13, 2020, Judge Brenner denied plaintiff's motion for summary 

judgment, granted the District's cross-motion for summary judgment, and 

dismissed plaintiff's Ocean County complaint in its entirety for the second time. 

Judge Brenner agreed with ALJ Kennedy that plaintiff was not entitled to 

a due process hearing pursuant to N.J.A.C. 6A:14-2.7 or 34 C.F.R. 300.507 

under the circumstances presented. The judge held that "[t]he mechanism that 

[the NJDOE] has established to challenge a district's failure to release a disabled 

or non-disabled student's records is a petition to the Commissioner of 

Education" pursuant to N.J.A.C. 6A:3-1.3(a). As we will discuss in more detail,

Judge Brenner distinguished Fry and concluded that the dicta upon which 

plaintiff relied "does not create precedent applicable to the case before this 

[c]ourt." Judge Brenner did not reach issues of mootness.

The Second (Instant) Appeal (A-3783-19)

In June 2020, plaintiff filed the instant notice of appeal (the "Second 

Appeal")

3

challenging the trial court orders entered by Judge Goldman on 

November 9, 2016, and by Judge Brenner on May 13, 2020. The Attorney 

General declined this court's invitation to appear as an amicus curiae.

3

 The First Appeal is closed. 
15 A-3783-19

Meanwhile, recently on May 5, 2021, the NJDOE issued proposed 

revisions to N.J.A.C. 6A:32, the regulations addressing access to pupil records. 

The State Board of Education considered those proposed revisions at its June 

16, 2021 meeting, but the details of this meeting have not been posted online as 

of the issuance of this opinion. The proposed revisions to N.J.A.C. 6A:32 are 

now in the midst of the public comment period, and have not yet been adopted. 

II.

A.

We first briefly address whether the present appeal is moot. Although the 

District did not expressly argue mootness in its brief, the viability of the appeal 

is undoubtedly affected by whether there is a sufficient "live" legal controversy 

still remaining to warrant a merits disposition from this court.

The Judiciary "normally will not entertain cases when a controversy no 

longer exists and the disputed issues have become moot." De Vesa v. Dorsey, 

134 N.J. 420, 428 (1993) (Pollock, J., concurring) (citing Oxfeld v. N.J. State 

Bd. of Educ., 68 N.J. 301, 303-04 (1975)). An issue has become moot "when 

[the] decision sought in a matter, when rendered, can have no practical effect on 

the existing controversy." Redd v. Bowman, 223 N.J. 87, 104 (2015) (quoting 

Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App. Div. 
16 A-3783-19

2011)); see also Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311, 319

(App. Div. 2010) (declining to address the merits of a dispute regarding the 

authorization of medical treatment that had become moot). 

The concept of mootness derives from the Judiciary's unique institutional 

role as a branch of government that only acts when a genuine dispute is placed 

before it. Generally, we do not render advisory decisions retrospectively 

opining about the legality of matters that have already been resolved.

"Ordinarily, our interest in preserving judicial resources dictates that we not 

attempt to resolve legal issues in the abstract." Zirger v. Gen. Accident Ins. Co., 

144 N.J. 327, 330 (1996) (citations omitted).

That said, in limited instances, courts will address the merits of appeals 

that have become moot, choosing to do so "where the underlying issue is one of 

substantial importance, likely to reoccur but capable of evading review." Ibid.

(citations omitted); see also Mistrick v. Div. of Med. Assistance & Health 

Servs., 154 N.J. 158, 165 (1998); In re Conroy, 98 N.J. 321, 342 (1985). We 

tend to do so when the matter evading review poses a significant public question 

or affects a significant public interest. See, e.g., Guttenberg Sav. & Loan Ass'n 

v. Rivera, 85 N.J. 617, 622-23 (1981); Dunellen Bd. of Educ. v. Dunellen Educ. 
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Ass'n, 64 N.J. 17, 22 (1973); In re Commitment of C.M., 458 N.J. Super. 563, 

568-69 (App. Div. 2019).

Here, Judge Goldman ruled nearly five years ago in September 2016 that 

the records dispute between plaintiff and the District was moot because 

plaintiff's counsel at that time was unable to specify what records were missing.

The judge added that "there's no reason to doubt the veracity of an official [of 

the District] who says these are all the records I have."4 The appendices on 

appeal contain such certifications from Dr. Cerco, the District's Director of 

Special Education, and defendant's attorney Butler, who certified that she 

provided over 1,400 documents to plaintiff's counsel in 2015 and early 2016. 

Plaintiff nevertheless contends the District's turnover of records was 

incomplete. She suggests, for example, that the District must have records from 

the school nurse that concern her son and that were not supplied. Plaintiff also 

contends there must be additional records that were created after early 2016, 

while the educational services dispute was still in litigation.

Although we have serious doubts about whether there is still a live 

controversy before us, we decline to dismiss this appeal on grounds of mootness. 

4

 A different attorney from plaintiff's law firm, who is not involved in the 

present appeal, argued the motion before Judge Goldman in September 2016.
18 A-3783-19

For one thing, the District's brief did not argue the point. Also, Judge Brenner's 

post-remand May 2020 opinion addressed the merits without commenting about 

mootness. In addition, there are arguably issues of public importance involved 

here, even though this is not an ideal procedural setting for resolving those 

issues. We therefore move onto those legal issues.

B.

This appeal implicates a tangle of various—and sometimes overlapping—

federal and state statutes and regulations, including: (1) the IDEA, 20 U.S.C. §§ 

1400-1482, and implementing regulations, 34 C.F.R. Part 300; (2) New Jersey's 

statutes enacted pursuant to the IDEA, N.J.S.A. 18A:46-1 to -55, and 

implementing regulations, N.J.A.C. 6A:14-1.1 to -10.2; (3) the Family 

Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g, and 

implementing regulations, 34 C.F.R. Part 99; (4) the NJPRA, N.J.S.A. 18A:36-

19, and implementing regulations, N.J.A.C. 6A:32-7.1 to -7.8; and (5) New 

Jersey's statutes pertaining to controversies and disputes arising under school 

laws, N.J.S.A. 18A:6-9 to -29, and implementing regulations, N.J.A.C. 6A:3-1.1 

to -17. 
19 A-3783-19

The appeal also concerns the Supreme Court's majority opinion in Fry, 

upon which plaintiff relies and which Judge Brenner distinguished from the 

present matter. 

The IDEA

The IDEA "offers States federal funds to assist in educating children with 

disabilities." Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 

U.S. ___, 137 S. Ct. 988, 993 (2017). "In exchange for the funds, a State pledges 

to comply with a number of statutory conditions." Ibid. "Among them, the State 

must provide a free appropriate public education—a FAPE, for short—to all 

eligible children." Ibid. (citing 20 U.S.C. § 1412(a)(1)). 

"A FAPE . . . includes both 'special education' and 'related services.'" Id.

at 994 (quoting 20 U.S.C. § 1401(9)). "A State covered by the IDEA must 

provide a disabled child with such special education and related services 'in 

conformity with the [child's] individualized education program,' or IEP." Ibid. 

(alteration in original) (quoting 20 U.S.C. § 1401(9)(D)). "The IEP is the means 

by which special education and related services are 'tailored to the unique needs' 

of a particular child" and "must be drafted in compliance with a detailed set of 

procedures" that "emphasize collaboration among parents and educators." Ibid.

(quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 
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176, 181 (1982)). However, parents and educators do not always agree upon the 

content of a child's IEP. Ibid. 

The IDEA requires that state and local education agencies receiving 

funding for special education "establish and maintain procedures in accordance 

with [20 U.S.C. § 1415] to ensure that children with disabilities and their parents 

are guaranteed procedural safeguards with respect to the provision of a free 

appropriate public education by such agencies." 20 U.S.C. § 1415(a). "The 

minimum procedures mandated include parental access to relevant school 

records, notice to parents of any proposed change in a child's educational 

placement, and the right to present complaints related to the child's placement 

or provision of free appropriate education." In re Adoption of Amends. to 

N.J.A.C. 6:28-2.10, 3.6 & 4.3, 305 N.J. Super. 389, 395 (App. Div. 1997). 

Two of those procedural safeguards within the IDEA are implicated in this 

case: (1) "[a]n opportunity for the parents of a child with a disability to examine 

all records relating to such child," codified at 20 U.S.C. § 1415(b)(1); and (2) 

"[a]n opportunity for any party to present a complaint . . . 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," 

codified at 20 U.S.C. § 1415(b)(6)(A).
21 A-3783-19

A Parent's Right Under the IDEA to Examine Education Records

A parent's right to examine a child's education records under the IDEA is 

explained in the IDEA's regulations. Initially, 34 C.F.R. § 300.501(a) reiterates 

the rights afforded by 20 U.S.C. § 1415(b)(1), i.e., that "[t]he parents of a child 

with a disability must be afforded, in accordance with the procedures of §§ 

300.613 through 300.621, an opportunity to inspect and review all education 

records with respect to—(1) The identification, evaluation, and educational 

placement of the child; and (2) The provision of FAPE to the child." 

34 C.F.R. § 300.613 provides more specific information regarding a state's

responsibilities to ensure that parents are afforded these access rights:

(a) Each participating agency must permit parents to 

inspect and review any education records relating to 

their children that are collected, maintained, or used by 

the agency under this part. The agency must comply 

with a request without unnecessary delay and before 

any meeting regarding an IEP, or any hearing pursuant 

to § 300.507 or §§ 300.530 through 300.532, or 

resolution session pursuant to § 300.510, and in no case 

more than 45 days after the request has been made.

(b) The right to inspect and review education records 

under this section includes—

(1) The right to a response from the 

participating agency to reasonable requests for 

explanations and interpretation of the records;
22 A-3783-19

(2) The right to request that the agency provide 

copies of the records containing the information 

if failure to provide those copies would 

effectively prevent the parent from exercising the 

right to inspect and review the records; and

(3) The right to have a representative of the 

parent inspect and review the records. 

Notably, the IDEA is conspicuously silent as to whether parents seeking 

access to education records have a right to a hearing if records are withheld and 

an access dispute arises. 34 C.F.R. § 300.619 states that parents may request a 

hearing, but only "to challenge information in education records to ensure that 

it is not inaccurate, misleading, or otherwise in violation of the privacy or other 

rights of the child." (Emphasis added). The regulations further provide that 

such "[a] hearing held under § 300.619 must be conducted according to the 

procedures in 34 CFR 99.22." 34 C.F.R. § 300.621. 

Title 34, Part 99 contains regulations related to FERPA, 20 U.S.C. § 

1232g. FERPA is a "[f]ederal law governing the privacy of student records." 

L.R., 238 N.J. at 561 (Patterson, J., concurring). It "prohibit[s] the federal 

funding of educational institutions that have a policy or practice of releasing 

education records to unauthorized persons." Gonzaga Univ. v. Doe, 536 U.S.

273, 276 (2002). 
23 A-3783-19

The hearing requirement set forth in the IDEA's regulations at 34 C.F.R. 

§ 300.619 mirrors the hearing requirement set forth in FERPA's regulations at 

34 C.F.R. § 99.21(a), which states that parents or eligible students are entitled 

to "an opportunity for a hearing to challenge the content of the student's 

education records on the grounds that the information contained in the education 

records is inaccurate, misleading, or in violation of the privacy rights of the 

student." (Emphasis added).

34 C.F.R. 99.22, incorporated by reference above in 34 C.F.R. § 300.621, 

states that hearings to challenge information in education records 

must meet, at a minimum, the following requirements:

(a) The educational agency or institution shall hold the 

hearing within a reasonable time after it has received 

the request for the hearing from the parent or eligible 

student.

(b) The educational agency or institution shall give the 

parent or eligible student notice of the date, time, and 

place, reasonably in advance of the hearing.

(c) The hearing may be conducted by any individual, 

including an official of the educational agency or 

institution, who does not have a direct interest in the 

outcome of the hearing.

(d) The educational agency or institution shall give the 

parent or eligible student a full and fair opportunity to 

present evidence relevant to the issues raised under § 

99.21. The parent or eligible student may, at their own 
24 A-3783-19

expense, be assisted or represented by one or more 

individuals of his or her own choice, including an 

attorney.

(e) The educational agency or institution shall make its 

decision in writing within a reasonable period of time 

after the hearing.

(f) The decision must be based solely on the evidence 

presented at the hearing, and must include a summary 

of the evidence and the reasons for the decision.

 

"If, as a result of the hearing, the agency decides that the information is 

inaccurate, misleading or otherwise in violation of the privacy or other rights of 

the child, it must amend the information accordingly and so inform the parent 

in writing." 34 C.F.R. § 300.620(a) (emphasis added). Otherwise, "it must 

inform the parent of the parent's right to place in the records the agency 

maintains on the child a statement commenting on the information or setting 

forth any reasons for disagreeing with the decision of the agency." 34 C.F.R. § 

300.620(b) (emphasis added). The language contained within the IDEA 

regulation subparts concerning the agency's post-hearing responsibilities 

mirrors language in the FERPA regulations at 34 C.F.R. 99.21(b). 
25 A-3783-19

IDEA Complaint Procedures and Due Process Hearings

The IDEA provides that states must afford parents an impartial due 

process hearing "[w]henever a complaint has been received under subsection 

(b)(6) or (k)." 20 U.S.C. § 1415(f)(1)(A). 

The first scenario warranting such a due process hearing is triggered when, 

pursuant to subsection (b)(6), any party files a complaint

(A) 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; and

(B) which sets forth an alleged violation that occurred 

not more than 2 years before the date the parent or 

public agency knew or should have known about the 

alleged action that forms the basis of the complaint, or,

if the State has an explicit time limitation for presenting 

such a complaint under this subchapter [20 USCS §§

1411-1419], in such time as the State law allows, except 

that the exceptions to the timeline described in 

subsection (f)(3)(D) shall apply to the timeline 

described in this subparagraph.

[20 U.S.C. § 1415(b)(6) (emphasis added).]

A complaint filed pursuant to subsection (b)(6) must include: (1) the 

child's name, address, and school the child is attending; (2) "a description of the 

nature of the problem of the child relating to such proposed initiation or change, 

including facts relating to such problem"; and (3) "a proposed resolution of the 
26 A-3783-19

problem to the extent known and available to the party at the time." 20 U.S.C. 

§ 1415(b)(7)(A)(i), (ii). 

Next, a response to a complaint filed pursuant to subsection (b)(6) must 

include: (1) "an explanation of why the agency proposed or refused to take the 

action raised in the complaint"; (2) "a description of other options that the IEP 

Team considered and the reasons why those options were rejected"; (3) "a 

description of each evaluation procedure, assessment, record, or report the 

agency used as the basis for the proposed or refused action"; and (4) "a 

description of the factors that are relevant to the agency's proposal or refusal." 

20 U.S.C. § 1415(c)(2)(B)(i)(I). 

The second scenario warranting a due process hearing under the IDEA is 

triggered when, pursuant to subsection (k), any party files a complaint 

concerning a school district's decision "to order a change in placement for a 

child with a disability who violates a code of student conduct" to an "alternative 

educational setting." 20 U.S.C. § 1415(k) (emphasis added). See, e.g., K.J. v. 

Greater Egg Harbor Reg'l High Sch. Dist. Bd. of Educ., 431 F. Supp. 3d 488, 

499, 511 (D.N.J. 2019) (discussing parents' filing of a due process petition 

pursuant to the IDEA "to challenge [the school district's] alternative placement" 

decision for their son). 
27 A-3783-19

20 U.S.C. § 1415(f)(3)(E)(i) and (ii) limit the findings that a hearing 

officer may make at a due process hearing under the IDEA in the following 

manner:

(i) In general. Subject to clause (ii), a decision made 

by a hearing officer shall be made on substantive 

grounds based on a determination of whether the child 

received a free appropriate public education.

(ii) Procedural issues. In matters alleging a procedural 

violation, a hearing officer may find that a child did not 

receive a free appropriate public education only if the 

procedural inadequacies—

(I) impeded the child's right to a free 

appropriate public education;

(II) significantly impeded the parents'

opportunity to participate in the decisionmaking 

process regarding the provision of a free 

appropriate public education to the parents'

child; or

(III) caused a deprivation of educational 

benefits.

20 U.S.C. § 1415(f)(3)(E)(iii) provides that "[n]othing in this 

subparagraph shall be construed to preclude a hearing officer from ordering a 

local educational agency to comply with procedural requirements under this 

section." That said, "[a] procedural violation is actionable under the IDEA only 

if it results in a loss of educational opportunity for the student, seriously deprives 
28 A-3783-19

parents of their participation rights, or causes a deprivation of educational 

benefits." D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d Cir. 2010) 

(citing Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007)). 

"Thus, though it is important that a school district comply with the IDEA's 

procedural requirements, rather than being a goal in itself, such compliance 

primarily is significant because of the requirements' impact on students' and 

parents' substantive rights." Ibid.

"[A]t the conclusion of the administrative process, the losing party may 

seek redress in state or federal court." Endrew F., 137 S. Ct. at 994 (citing 20 

U.S.C. § 1415(i)(2)(A)); see also Bd. of Educ. of Lenape Reg'l High Sch. Dist. 

v. State Dep't of Educ., Off. of Special Educ. Programs, 399 N.J. Super. 595, 

605 (App. Div. 2008) (explaining that following a due process hearing, "a party 

'aggrieved' by the ALJ's decision may file a civil action [either] in the Law 

Division of [the] Superior Court or in the United States District Court")

(citations omitted). "While commonly referred to as appeals, . . . the [trial court] 

proceeding is not one which proceeds only upon the record compiled before the

agency, but one which affords the opportunity for the creation of a broader 

record for analysis by the trier of fact." Hasbrouck Heights Bd. of Educ. v. W.J., 

358 N.J. Super. 8, 12 (App. Div. 2003). 
29 A-3783-19

Of particular note for the present case, "a court 'may award reasonable 

attorneys' fees as part of the costs' to parents who prevail in an action" brought 

pursuant to the IDEA. Arlington Cent. Sch. Dist. Bd. v. Murphy, 548 U.S. 291, 

293 (2006) (quoting 20 U.S.C. § 1415(i)(3)(B)). 

New Jersey Statutes and Regulations Implementing the IDEA

The IDEA mandates that states receiving funding pursuant to it shall 

"ensure that any State rules, regulations, and policies relating to [the IDEA] . . . 

conform to the purposes of [the IDEA]." 20 U.S.C. § 1407(a)(1). "New Jersey 

has adopted a statute and regulations to comply with IDEA." Lenape Reg'l High 

Sch. Dist., 399 N.J. Super. at 600. The state's "statutory and regulatory scheme 

is intended to reflect the federal standard." In re N.J.A.C. 6:28-2.10, 305 N.J. 

Super. at 396. That said, "[t]he New Jersey response to the requirements of the 

IDEA is primarily regulatory." Baer v. Klagholz, 339 N.J. Super. 168, 189 

(App. Div. 2001). 

Right to Examine Education Records

The implementing state statute, N.J.S.A. 18A:46-1 to -55, does not 

address a parent's access rights to a child's education records under the IDEA. 

While the implementing regulations contain a subchapter addressing student 

records, this subchapter cross-references and incorporates by reference the 
30 A-3783-19

implementing regulations for the NJPRA at N.J.A.C. 6A:32-7. Thus, in order 

to understand how New Jersey grants a parent access to a disabled child's

education records consistent with the IDEA's requirement that a parent is 

entitled to that procedural safeguard, it is necessary to review the NJPRA and 

its implementing regulations. 

Specifically, N.J.A.C. 6A:14-2.9, part of the regulations promulgated

pursuant to the state special education statute, provides:

(a) All student records shall be maintained according 

to N.J.A.C. 6A:32-7.

(b) The parent, adult student, or designated 

representative shall be permitted to inspect and review 

the contents of the student's records maintained by the 

district board of education pursuant to N.J.A.C. 6A:32-

7 without unnecessary delay and before any meeting 

regarding the IEP.

Consistent with the IDEA, the NJPRA affords parents full access to their 

children's "pupil" records, but also protects the "reasonable privacy" interests of 

parents and students by requiring districts to securely maintain those records. 

N.J.S.A. 18A:36-19; see also N.J.A.C. 6A:32-7.1.5 The NJPRA's implementing 

regulations, in their current form, broadly define "student record" as 

5

 While the IDEA labels the records at issue as "education records," the NJPRA 

and its regulations use the labels "pupil records" and "student records."
31 A-3783-19

information related to an individual student gathered 

within or outside the school district and maintained 

within the school district, regardless of the physical 

form in which it is maintained. Essential in this 

definition is the idea that any information that is 

maintained for the purpose of second-party review is 

considered a student record. Therefore, information 

recorded by certified school personnel solely as a 

memory aid and not for the use of a second party is 

excluded from this definition.

[N.J.A.C. 6A:32-2.1.]

N.J.A.C. 6A:32-7.5(a) limits access to student records to "authorized 

organizations, agencies or persons as defined in this section," including parents. 

N.J.A.C. 6A:32-7.5(e). 

Although the IDEA's regulations provide that parents may request a 

hearing to challenge information in education records "to ensure that it is not 

inaccurate, misleading, or otherwise in violation of the privacy or other rights 

of the child," 34 C.F.R. § 300.619, the NJPRA's regulations offer a somewhat 

more expansive right to a hearing. Specifically, N.J.A.C. 6A:32-7.7(a) provides 

that "[s]tudent records are subject to challenge by parents and adult students on 

grounds of inaccuracy, irrelevancy, impermissive disclosure, inclusion of 

improper information or denial of access to organizations, agencies, and 

persons." (Emphasis added).

N.J.A.C. 6A:32-7.7(b) explains the appeal process as follows:
32 A-3783-19

To request a change in the record or to request a stay of 

disclosure pending final determination of the 

challenged procedure, a parent or adult student shall 

notify in writing the chief school administrator of the 

specific issues relating to the student record. Within 10 

school days of notification, the chief school 

administrator or his or her designee shall notify the 

parent or adult student of the school district's decision.

If the school district disagrees with the request, the 

chief school administrator or his or her designee shall 

meet with the parent or adult student to resolve the 

issues set forth in the appeal. If the matter is not 

satisfactorily resolved, the parent or adult student has 

10 school days to appeal this decision to the district 

board of education. If appeal is made to the district 

board of education, a decision shall be rendered within 

20 school days. The decision of the district board of 

education may be appealed to the Commissioner 

pursuant to N.J.S.A. 18A:6-9 and N.J.A.C. 6A:3, 

Controversies and Disputes. At all stages of the appeal 

process, the parent or adult student shall be afforded a 

full and fair opportunity to present evidence relevant to 

the issue. A record of the appeal proceedings and 

outcome shall be made a part of the student record with 

copies made available to the parent or adult student. 

[(Emphasis added).]

N.J.A.C. 6A:32-7.7(c) states that "[a]ppeals relating to student records of 

students with disabilities shall be processed in accordance with the requirements 

of (b) above." Thus, by appealing the district board of education's decision to 

the Commissioner of Education pursuant to N.J.S.A. 18A:6-9 and N.J.A.C. 

6A:3, parents of students with disabilities challenging a denial of access to a 
33 A-3783-19

child's education record are provided certain rights to a hearing, albeit not what 

the IDEA calls a "due process hearing."

N.J.S.A. 18A:6-9 grants the Commissioner of Education "jurisdiction to 

hear and determine, without cost to the parties, all controversies and disputes 

arising under the school laws." The appeal process is initiated via the filing of 

a petition of appeal with the Commissioner of Education, Office of 

Controversies and Disputes, within ninety days of the district board of 

education's decision. N.J.A.C. 6A:3-1.3, 1.4. 

Once the district board of education files its answer to the petition in 

accordance with N.J.A.C. 6A:3-1.5, then "the Commissioner may either retain 

the matter for hearing directly and individually, designate an assistant 

commissioner to hear and decide the matter pursuant to N.J.S.A. 18A:4-33 and 

34, or transmit the matter for hearing before the OAL." N.J.A.C. 6A:3-1.11. 

Thereafter, the final determination is made by the Commissioner in writing, and 

it may be appealed to the Appellate Division. N.J.A.C. 6A:3-1.14. 

Complaint Procedures and Due Process Hearings

Consistent with the IDEA, the New Jersey special education statute, at 

N.J.S.A. 18A:46-1.1, limits the scope of a due process hearing held pursuant to 

the IDEA, Title 18A, Chapter 46, or the implementing regulations, to "the 
34 A-3783-19

identification, evaluation, reevaluation, classification, educational placement, 

the provision of a [FAPE], or disciplinary action, of a child with a disability." 

The implementing regulations reiterate that limitation. N.J.A.C. 6A:14-

2.7(a) states that a due process hearing may be requested on behalf of students 

age three through twenty-one "when there is a disagreement regarding 

identification, evaluation, reevaluation, classification, educational placement, 

the provision of a [FAPE], or disciplinary action." Additionally, "the district 

board of education . . . may request a due process hearing when the district board 

of education is unable to obtain required consent to conduct an initial evaluation 

or a reevaluation, or to release student records." N.J.A.C. 6A:14-2.7(b).

C.

With this background in mind, we turn to the core issue of this appeal: 

whether the IDEA or state law provide a parent with a right to a "due process 

hearing" when the parent's dispute with the school district solely concerns 

whether the district failed to provide that parent with access to the child's student 

records. Having considered the parties' contentions in light of the applicable 

laws, we concur with Judge Brenner that the answer is no. We do so 

substantially for the sound reasons set forth in his May 13, 2020 oral opinion. 

We add a few comments by way of amplification.
35 A-3783-19

Nothing in the text of the IDEA grants a parent a right to a due process 

hearing if the complaint only alleges a denial of access to a child's education 

records. As we have already discussed, the right to such a hearing prescribed 

by the IDEA is confined to a right to "challenge information in education records

to ensure that it is not inaccurate, misleading, or otherwise in violation of the 

privacy or other rights of the child." 34 C.F.R. § 300.619 (emphasis added). 

The federal provisions contain no such hearing right for a situation where the 

parent argues, as here, that a school district withheld requested school records.

As for state education law, nothing in N.J.A.C. 6A:14-2.7(a) or (b) grants 

a parent the right to an IDEA due process hearing in a situation of allegedly 

withheld records. The implementing regulations maintain the emphasis on a 

FAPE and limit the scope of the due process hearing consistent with the IDEA. 

This is illustrated by N.J.A.C. 6A:14-2.7(k), which limits the appropriate 

grounds for decisions made by ALJs in such matters:

The decision made by an administrative law judge in a 

due process hearing shall be made on substantive 

grounds based on a determination of whether the child 

received a free, appropriate public education (FAPE). 

In matters alleging a procedural violation, an 

administrative law judge may decide that a child did not 

receive a FAPE only if the procedural inadequacies: 

1. Impeded the child's right to a FAPE; 
36 A-3783-19

2. Significantly impeded the parents' 

opportunity to participate in the decisionmaking process regarding the provision of 

FAPE to the child; or 

3. Caused a deprivation of educational benefits.

[(Emphasis added).]

None of these three scenarios is presented here in this "stand-alone" 

context. The substantive dispute between the parent and the District concerning 

M.O.'s FAPE and the educational services he needs has concluded. The dispute 

before us only concerns an alleged failure to turn over additional records 

surmised to be in the District's possession. There is no provision in the pertinent 

educational statutes and regulations that confer a right to a due process 

hearing—at which, notably, attorneys' fees may be recovered by a prevailing 

parent—for such a records-only dispute.

As Judge Brenner correctly pointed out, the appropriate pathway for 

resolving such a "denial-of-access" dispute under the education laws is a petition 

to the Commissioner of Education's Office of Controversies and Disputes 

pursuant to N.J.S.A. 18A:6-9, N.J.A.C. 6A:3, and N.J.A.C. 6A:32-7.7(c). The 

Commissioner may, in turn, choose to refer the records access dispute to the 

OAL for a hearing, or, alternatively, to designate an Assistant Commissioner to 

hear and decide the matter. In either instance, the hearing conducted would not 
37 A-3783-19

be a "due process hearing" prescribed by the IDEA. Importantly, the hearing 

would not authorize fee-shifting under the IDEA if the parent prevailed.

The U.S. Supreme Court's Opinion in Fry

We agree with Judge Brenner's ruling that footnote six of the United States 

Supreme Court's majority opinion in Fry does not confer upon D.O. a right to a 

due process hearing in this stand-alone records denial setting.

The petitioner in Fry was a child with a severe form of cerebral palsy. 580 

U.S. ___, 137 S. Ct. at 750. Her parents sued her school districts in federal court 

after they refused to allow her trained service dog to accompany her to 

kindergarten. 580 U.S. ___, 137 S. Ct. at 751-52. The lawsuit alleged violations 

of Title II of the Americans with Disabilities Act ("ADA") and § 504 of the 

Rehabilitation Act, more specifically that the districts denied the child equal 

access to the school and its programs, refused to reasonably accommodate her 

use of a service animal, and committed disability discrimination. 580 U.S. ___, 

137 S. Ct. at 752. The lawsuit did not expressly allege a denial of FAPE under 

the IDEA. 

The District Court granted the school districts' motion to dismiss the 

lawsuit upon concluding that 20 U.S.C. § 1415(l) required petitioners "to first 

exhaust the IDEA's administrative procedures" and "[a] divided panel of the 
38 A-3783-19

Court of Appeals for the Sixth Circuit affirmed." Ibid. The majority held that 

the IDEA's exhaustion provision applied when "the injuries [alleged in a suit] 

relate to the specific substantive protections of the IDEA," meaning "that 

exhaustion is necessary whenever 'the genesis and the manifestations' of the 

complained-of harms were 'educational' in nature." Ibid. (alteration in original) 

(quoting Fry v. Napoleon Cmty. Schs., 788 F.3d 622, 625 (6th Cir. 2015)). The 

dissenting judge disagreed and reasoned that the IDEA's exhaustion provision 

did not apply because the petitioners "'did not allege the denial of a FAPE' or 

'seek to modify [the child's] IEP in any way.'" Ibid. (quoting Fry, 788 F.3d at 

634) (Daughtrey, J., dissenting).

The Supreme Court majority agreed with the dissenting judge and 

concluded that "exhaustion is not necessary when the gravamen of the plaintiff's 

suit is something other than the denial of the IDEA's core guarantee—what the 

Act calls a 'free appropriate public education,'" or FAPE. 580 U.S. ___, 137 S. 

Ct. at 748. In so concluding, the Court held that "the only 'relief' the IDEA 

makes 'available' is relief for the denial of a FAPE." 580 U.S. ___, 137 S. Ct. 

at 755. It also held "that in determining whether a suit indeed 'seeks' relief for 

a such a denial, a court should look to the substance, or gravamen, of the 

plaintiff's complaint." 580 U.S. ___, 137 S. Ct. at 752.
39 A-3783-19

In its analysis, the Court emphasized "the primacy of a FAPE in the 

[IDEA's] statutory scheme" and reasoned that "[t]he only relief that an IDEA 

officer can give—hence the thing a plaintiff must seek in order to trigger § 

1415(l)'s exhaustion rule—is relief for the denial of a FAPE." 580 U.S. ___, 

137 S. Ct. at 753. In that regard, it quoted 20 U.S.C. § 1415(f)(3)(E)(i), which 

provides that "any decision by a hearing officer on a request for substantive 

relief 'shall' be 'based on a determination of whether the child received a free 

appropriate public education.'" 580 U.S. ___, 137 S. Ct. at 754. Then, in the 

footnote upon which plaintiff relies in this matter, the Court majority stated: 

Without finding the denial of a FAPE, a hearing officer 

may do nothing more than order a school district to 

comply with the Act's various procedural requirements, 

see § 1415(f)(3)(E)(iii)—for example, by allowing 

parents to "examine all records" relating to their child, 

§ 1415(b)(1). 

[580 U.S. ___, 137 S. Ct. at 754 n.6.]

Ultimately, the Court remanded the matter for a determination as to 

"whether the gravamen of [the] complaint charges, and seeks relief for, the 

denial of a FAPE." 580 U.S. ___, 137 S. Ct. at 758-59 (emphasis added). The 

Court instructed that the remand court "should establish whether (or to what 

extent) the [petitioners] invoked the IDEA's dispute resolution process before 

bringing [the federal lawsuit]" since that could "serve as evidence that the 
40 A-3783-19

gravamen of [the] later suit is the denial of a FAPE, even though that does not 

appear on the face of [the] complaint." 580 U.S. ___, 137 S. Ct. at 758-59.

Contrary to plaintiff's contention, footnote six does not create an 

independent right to a due process hearing under the IDEA when a parent wishes 

to pursue a stand-alone denial-of-access claim. Had Congress intended to grant 

such a right, and to require states to provide said right in order to be eligible for 

federal funding, it would have stated so in the IDEA. See Arlington, 548 U.S. 

at 296 ("[W]hen Congress attaches conditions to a State's acceptance of federal 

funds, the conditions must be set out 'unambiguously.'") (citations omitted). 

Congress did not do so.

As we have already noted, 20 U.S.C. § 1415(b) of the IDEA requires, as 

a procedural matter, "[a]n opportunity for the parents of a child with a disability 

to examine all records relating to such child." In a different subsection, 20 

U.S.C. § 1415(f), the IDEA addresses when due process hearings are warranted, 

the limitations on the nature of those hearings, and the limitations on the scope 

of the hearing officer's decision. After explaining what specific findings a 

hearing officer is permitted to make during a due process hearing on the issue 

of whether the child received a FAPE at 20 U.S.C. § 1415(f)(3)(E)(i) and (ii), 

20 U.S.C. § 1415(f)(3)(E)(iii) states that "[n]othing in this subparagraph shall 
41 A-3783-19

be construed to preclude a hearing officer from ordering a local educational 

agency to comply with procedural requirements under this section."

Although 20 U.S.C. § 1415(f)(3)(E)(iii) does not "preclude a hearing 

officer from ordering a local education agency to comply with procedural 

requirements" under the IDEA (which would include an opportunity for parents 

of disabled children to examine their children's education records), it does not 

create an independent right to a due process hearing when a parent wishes to 

pursue a stand-alone denial-of-access claim. Instead, this subsection is speaking 

to what a hearing officer may or may not do while conducting a due process 

hearing held pursuant to 20 U.S.C. § 1415(f)(1)(A). 

"The review to which an aggrieved party is entitled under IDEA is . . . 

defined by the terms of the statute itself." Hasbrouck Heights, 358 N.J. Super. 

at 11. Pursuant to 20 U.S.C. § 1415(f)(1)(A), the IDEA's plain language 

provides that a due process hearing is warranted only when "a complaint has 

been received under subsection (b)(6) or (k)," i.e., regarding "any matter relating 

to the identification, evaluation, or educational placement of the child, or the 

provision of a [FAPE]," 20 U.S.C. § 1415(b)(6), or regarding a school district's 

decision "to order a change in placement for a child with a disability who 
42 A-3783-19

violates a code of student conduct" to an "alternative educational setting." 20 

U.S.C. § 1415(k).

Thus, read in context with 20 U.S.C. § 1415 as a whole, 20 U.S.C. § 

1415(f)(3)(E)(iii) signifies that at a due process hearing conducted pursuant to 

either of the two scenarios enumerated in 20 U.S.C. § 1415(f)(1)(A), a hearing 

officer may—as an allied remedy—order a school district to allow a parent to 

examine a child's education records even if the hearing officer does not find that 

the district has deprived that child of a FAPE. That interpretation is consistent 

with footnote six of Fry. 580 U.S. ___, 137 S. Ct. at 754 n.6.

D.S. v. Bayonne

The above interpretation is also consistent with the Third Circuit Court of 

Appeals' observation in 2010 in D.S. v. Bayonne Board of Education, 602 F.3d 

at 565 that "[a] procedural violation is actionable under the IDEA only if it 

results in a loss of educational opportunity for the student, seriously deprives 

parents of their participation rights, or causes a deprivation of educational 

benefits." (Citations omitted).

As ALJ Kennedy and both Superior Court judges rightly concluded,

plaintiff was not entitled to a stand-alone IDEA due process hearing with respect 

to her free-standing records request. Her second due process complaint failed 
43 A-3783-19

to allege that the procedural violation she complained of resulted "in a loss of 

educational opportunity for the student, seriously deprive[d] parents of their 

participation rights, or cause[d] a deprivation of educational benefits." Ibid. 

Tellingly, plaintiff has not identified a single published opinion that has 

adopted her argument that footnote six of Fry entitles a parent who files a 

complaint against a school district alleging only a denial of access to records—

without any substantive claim of a denial of a FAPE—to a due process hearing 

under the IDEA. 

We understand why, as a policy matter, a parent or a disability rights 

advocacy organization might wish to have statutes and regulations adopted that 

create such an entitlement to a due process hearing in this stand-alone context, 

along with the prospect of fee-shifting that might attract counsel to take on such 

cases. We also do not encourage school districts to arbitrarily or unfairly 

withhold student records from parents who request them. But the education 

laws, as presently written, do not provide for such an entitlement to a due 

process hearing.

6 The sole avenue (albeit without fee-shifting) is a petition to 

6

 We do not address here whether other statutes outside of the education laws, 

such as OPRA, N.J.S.A. 47:1A-1 to -13, provide alternative effective access 

rights and remedies. See L.R., 238 N.J. at 549. We also do not foreclose the 

Commissioner from addressing the issue in the ongoing rulemaking process that 

is underway. 
44 A-3783-19

the Commissioner's Office of Controversies and Disputes, an option which 

plaintiff did not avail herself of here.

We have fully considered all of the remaining points raised on appeal, and 

have found them to lack sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E).

Affirmed.