Blair Hornstine



     Rather than edit the court’s decision that may distort the true meaning of U.S. District Judge Freda Wolfson’s concern and order, it is better to quote from her decision. 
Facts and Decision:
     Plaintiff Blair Hornstine is an exceptional student. After seven semesters in Moorestown High School, she has achieved the highest weighted grade point average in her class: 4.6894. Her high school transcript shows a remarkable 23 A+'s, 9 A's, 1 A-, and nothing lower. Plaintiff has earned these achievements in spite of the undisputed fact that she suffers from a physical disability. Because of this disability, the Board developed an IEP for her, as required by the IDEA.  See Complaint at ¶ 3. As part of her IEP, the Board granted her permission to participate in a hybrid program that allows her to attend morning classes and receive the remainder of her instruction at home from Board staff members. Id. It is undisputed that plaintiff needed this accommodation because her health problems caused "substantial fatigue" which rendered her unable to "attend [and] participate through a full school day."
The 2002-2003 Moorestown High School Student/Parent Handbook ("Handbook"), incorporating Board policy, states that the graduating "senior student with the highest seventh semester [weighted G.P.A.] will be named the valedictorian.”
     It is undisputed that Mr. Hornstine could not affect his daughter’s curriculum in any way without the express authority of the School Board.  The Board approved every aspect of plaintiff’s curriculum through her IEP.  (As an aside and not clarified in the court decision, Superintendent Kadri said that Hornstine’s father, a New Jersey Superior Court Judge in Camden County, had told him the “he was going to manipulate rules designed to protect disabled students for the purpose of allowing [Blair Hornstine] to win the valedictorian award.”  Although Kadri did make this statement, it was strongly refuted by Judge Hornstine. Additionally, Dr. Judithann C. Keefe, an Assistant Superintendent, in an Affidavit filed with the court stated that her superior, Mr. Kadri, did not tell the truth in his representations to the court regarding his statement.  Kadri’s comments were totally disregarded by Judge Wolfson.) 
     In the fall of 2002, Kadri began an “investigation” into Hornstine’s disabled status and attendant course load.  On November 20, 2002, Kadri was present at a meeting with Mr. Hornstine and the IEP team.  Her treating physician and the IEP team agreed that due to her medical condition at the time, a reduction in the number of her courses was necessary.  Yet Kadri ordered that the school physician review plaintiff's medical condition. Id. at ¶ 9. The school physician agreed that a "reduction in course load is medically appropriate due to her exhaustion and overextending herself this year." Id. at Exhibit A. Kadri, however, refused to allow plaintiff to drop a class.
     In the fall of 2002 and early 2003, Kadri held impromptu meetings with the Board attorney, the Child Study Team, and supervisors within the school system to discuss plaintiff's IEP and disability status, G.P.A., and valedictorian status. Complaint at ¶ 12. In December 2002, the Board contacted plaintiff's home instructors to "validate and verify" her educational curriculum. It is noteworthy that the Board did not inquire into the curricula of other home-schooled students.
     In January 2003, at a dinner meeting with the school's class officers, Kadri discussed the possibility of declaring multiple valedictorians. Furthermore, in late February 2003, he addressed the same issue to an assembly of the entire senior class, while plaintiff was present.  Complain at para. 14,17
     In late April 2003, Kadri placed a proposal before the Board that its policy be amended to allow for multiple valedictorians. Kadri Cert. at ¶ 35. The proposed amendment to the policy reads:
     In determining the recipients of [the awards of valedictorian and salutatorian], the Board may review the program of study, manner of instruction, and other relevant issues, and in its discretion, with the assistance of the administration, may designate multiple valedictorians and/or salutatorians to ensure that all students have an equal opportunity to compete for these awards.
     That amendment received a public reading on May 1, 2003, and, while the Board was not scheduled to vote on the proposal until May 12, Kadri sent a letter on May 6 to Kenneth Mirkin, the non-disabled classmate who defendants apparently wish to name as valedictorian along with, or instead of, plaintiff, informing him that he "certainly will be considered for the valedictorian award." Mirkin's Motion to Intervene at Exhibit A. While Mirken is an extremely gifted student, it is undisputed that his weighted G.P.A. at the end of the seventh semester was lower than that of plaintiff.  Moreover, despite plaintiff's higher weighted G.P.A., Kadri did not send her a similar letter informing her that she will be considered for the valedictorian award.
     Moreover, a comparison of plaintiff's transcript with that of Mirkin reveals that he had a mathematical advantage over plaintiff. Statistically, he took more weighted courses than plaintiff. In the four years at Moorestown High School, plaintiff took 8 AP courses whereas Mirkin took 10, and plaintiff took 15 Honors courses while Mirkin took 12.
In a strained and relentless effort to further show that plaintiff's accommodations gave her an unfair advantage over her non-disabled classmates, Kadri submitted a late supplemental certification on May 7, 2003, one day before the TRO hearing.
     Kadri makes numerous re-calculations of plaintiff's weighted G.P.A. to reflect hypothetical curricula for plaintiff had she been a non-disabled student and required to take an in-school curriculum. He even provides as an illustration a faux transcript for plaintiff (and assures the Court that the Board does not intend to submit the transcript to any college or university).
The fact that Kadri's speculative calculations, theoretical curricula, and hypothetical alternative transcript can produce only a .005 difference between the top two students highlights the weakness of defendants' position and the lengths to which Kadri is prepared to go to deny plaintiff sole valedictorian status to appease the Moorestown community. Furthermore, Kadri fails to mention the salient fact that, in reality, Mirkin, who was not afforded any of the accommodations given to plaintiff, nonetheless had a statistical advantage over her in terms of the weighted courses taken by both students.
     In his continued effort to denigrate plaintiff's accomplishments, Kadri notes that he has "reviewed the transcripts of the past six valedictorians, and none of those students earned straight A+ grades, like Plaintiff received during her junior year." Id. at ¶ 10. He is referring to plaintiff's junior year accomplishment of earning an A+ in all ten of her classes. Instead of applauding plaintiff's achievements, he insinuates that since no valedictorian in the past six years was able to achieve grades as high as plaintiff did in her junior year, then plaintiff’s success must be due to some unfair advantage.
     The Board and Superintendent Kadri have made clear that they have no intention of allowing plaintiff to be the sole valedictorian, even though she has earned the highest weighted G.P.A. after seven semesters. Worse yet, the fact that Kadri informed Mirkin--and not plaintiff--that he was being considered for the award raises the possibility that the Board may not select plaintiff for the honor at all.
Perhaps with this possibility in mind, defense counsel at oral argument did not state on the record that the Board definitely would name plaintiff one of the valedictorians.
In determining the recipients of [the awards of valedictorian and salutatorian], the Board may review the program of study, manner of instruction, and other relevant issues, and in its discretion, with the assistance of the administration, may designate multiple valedictorians and/or salutatorians to ensure that all students have an equal opportunity to compete for these awards.
     Given the historical context of this amendment and Kadri's expectation that it will go into effect before graduation, more than sufficient evidence exists to establish that the Board's proposed action was intended and designed to have a particular exclusionary effect on plaintiff because of her disabled status.
Plaintiff has presented compelling evidence through Kadri's own words and actions which suggests he believed that she received an unfair advantage over other students on account of her disabled status and that, to right the imbalance, her accomplishments should be discounted. See Kadri Cert. ¶¶ 7-8, 34-35. Plaintiff aptly summarizes the inference that can be drawn from Kadri's actions: "[r]ather than being lauded for her significant academic accomplishments, the [imposition of] co-valedictorian status under these circumstances will serve only to highlight the fact that due to her disabling conditions, defendants do not consider her achievement to be on par with or comparable to that of a non-disabled student."
This Court's finding of discrimination is further supported by circumstantial evidence offered by plaintiff. With the help of supporting certifications, and, in some cases, simple logic, plaintiff has substantially refuted each of defendants' stated justifications for their actions. The fact that the veracity of each of defendants' justifications has been called into question suggests that the proposed amendment is discriminatory despite its neutral language.
     Kadri's numerous calculations of plaintiff's weighted G.P.A. based upon hypothetical curricula he crafted for her further shows the discriminatory intent underlying his actions. His calculations suggest that her weighted G.P.A. would have been only five thousandths of a point less than that of the intervenor. Kadri. Supp. Cert. at ¶¶ 12-13. This difference belies Kadri's contention that the proposed amendment was designed to remedy a "fundamental unfairness."
     That plaintiff has presented sufficient evidence to support a finding of discrimination is further supported.  Here, defendants put forth their best efforts to afford plaintiff an equal opportunity to become Moorestown High School's valedictorian. There is no dispute between the parties that plaintiff was afforded the educational services to which she was entitled under the IDEA, and that, with the help of these services, plaintiff earned the valedictorian award. Where defendants have failed plaintiff is with respect to her full enjoyment of this award. Defendants' proposed amendment would have the effect of defeating or substantially impairing this accomplishment.  Additionally, plaintiff did not receive an unfair competitive advantage from her accommodation.
     This Court is convinced that plaintiff has presented sufficient evidence that she is likely to succeed on her discrimination claims under the ADA and Section 504 because she did not receive an unfair competitive advantage on account of her accommodations under the IDEA.
     She has worked tremendously hard throughout her four years at Moorestown High in order to distinguish herself as the valedictorian, in spite of her disability. The student handbook memorialized the policy that was in effect for her entire tenure at the school: that the student with the highest seventh semester weighted G.P.A. would be named the sole valedictorian. Defendants now seek to diminish her award by naming another, non-disabled valedictorian, pursuant to a policy that is to take effect after plaintiff has already completed seven semesters. I agree with the Commissioner's decision in Shankar--any new valedictorian policy can not be applied retroactively to plaintiff. Id. at 1995.
Link to KeyCite NotesIn this case, it is undisputed that plaintiff persevered through the hardship of her disability to not only graduate, but to graduate first in her class. Instead of taking pride in her fine example, defendants seek to strip plaintiff of the distinction of sole valedictorian. Superintendent Kadri has made no secret of the fact that he believes plaintiff should not be the only valedictorian because she was granted accommodations on account of her disability. This was the message he sent to the senior class in February 2003, when he addressed his concerns to them about the inequality of the current valedictorian policy. If the Board were to name another valedictorian along with plaintiff, it would be sending the message loud and clear: "we have two valedictorians this year--a disabled one, and a non-disabled one." This would diminish the award which plaintiff has worked so hard to attain. Instead of honoring her as the student who earned the highest grades in her class in spite of her disability, the Board would be demeaning her by insinuating that her grades are not as meaningful because she rightfully received accommodations on account of her disability.
      If plaintiff were forced to accept her award along with a non-disabled student, the stigma would likely be unshakable. She would doubt her own accomplishments, and question the significance of being the "disabled valedictorian."
     As to the nature of his harm, Mirkin states "it is my position that, even accepting that Ms. Hornstine was disabled in some way, and therefore, entitled to the benefits she received, there is no legal basis upon which I should be excluded from enjoying the benefits that I have achieved without any special privileges or benefits being conferred upon me." Certification of Mirkin in Support of Notice of Motion to Intervene at ¶ 17. Mirkin’s argument simply does not carry the day. Mirkin’s premise that plaintiff has received "special privileges or benefits" reflects a misunderstanding of the IDEA, and the accommodations plaintiff was entitled to receive pursuant to the Board-approved IEP. Furthermore, as pointed out by plaintiff's counsel at oral argument, plaintiff's in-school classmates receive benefits she cannot enjoy: plaintiff cannot participate in class discussions and share in the ideas of her classmates and teachers, she does not get the benefit of cooperative learning, and receives only half the teaching hours that regularly-schooled students enjoy.
     The IDEA mandates that all students receive a free and appropriate public education. In this connection, defendants afforded plaintiff this right through her IEP. Plaintiff's IEP was constructed, ratified, and implemented by defendants. Defendants belatedly seek to characterize plaintiff's remarkable academic success as less than it is because of her IEP. Permitting defendants to diminish plaintiff's accomplishments by awarding multiple valedictorian and salutatorian awards will not be in the public interest.
     Without the imposition of temporary restraints, defendants would be discriminating against plaintiff because of her disability. Such conduct should not and cannot be tolerated by society. "New Jersey 'prides itself on judging each individual by his or her merits' and on being 'in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society.' "
     In summary, it appears that Superintendent Kadri and the Board initially attempted to appease the interests of some parents and students in the school community by reviewing plaintiff's academic history to confirm that she had fairly earned the valedictorian award. In so doing, however, defendants adopted the assumption that somehow plaintiff's disability and accommodations have given her an academic advantage over other students. They have lost sight of the fact that plaintiff, unlike her peers, suffers from a debilitating medical condition, which has never been disputed by the Board, and that her accommodations were aimed at putting her on
a level playing field with her healthy classmates.  Defendants should revel in the success of their IDEA program and the academic star it has produced; instead they seek to diminish the honor that she has rightly earned.
     I want to make clear that the evidence in this case has shown that Ms. Hornstine earned her distinction as the top student in her class in spite of, not because of, her disability.

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