N.S. AND J.S., on behalf of minor child, A.S. V. BOARD OF EDUCATION OF THE TOWNSHIP OF NORTH BRUNSWICK, MIDDLESEX COUNTY, 5/7/04 (#198-04)

198-04 (Link to OAL Decision: http://lawlibrary.rutgers.edu/oal/html/initial/edu06861-03_1.html)
N.S. AND J.S., on behalf of minor child, A.S., 	:
PETITIONERS, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE TOWNSHIP 	: 	DECISION
OF NORTH BRUNSWICK, MIDDLESEX
COUNTY, 	:
RESPONDENT. 	:
__________________________________________:
SYNOPSIS
Petitioners 	challenged 	the 	Boardís 	residency 	determination 	that 	their 	son, 	A.S., 	was 	a
nonresident of the District and was not entitled to a free public education.
The ALJ found that the matter was ripe for summary decision since petitioners met the
requirements of N.J.S.A. 18A:38-1 and N.J.A.C. 6A:28-2.4. 	Citing P.B.K., the ALJ found that
A.S. had a relative domiciled in the United States who had legal guardianship over A.S. and who
was willing to support him gratis while petitioners were in India and would be unable to care for
A.S. 	The ALJ granted petitionersí motion for summary decision. 	A.S. was entitled to a free
education in the District.
The Commissioner adopted the findings and determination in the Initial Decision as his own.
This synopsis is not part of the Commissionerís decision. It has been prepared for the convenience of the
reader. It has been neither reviewed nor approved by the Commissioner.
May 7, 2004

OAL DKT. NO. EDU 6861-03
AGENCY DKT. NO. 318-9/03
N.S. AND J.S., on behalf of minor child, A.S., 	:
PETITIONERS, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE TOWNSHIP 	: 	DECISION
OF NORTH BRUNSWICK, MIDDLESEX
COUNTY, 	:
RESPONDENT. 	:
__________________________________________:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. 	The Boardís exceptions and petitionersí reply thereto were
submitted in accordance with N.J.A.C. 1:1-18.4 and were duly considered by the Commissioner
in reaching his determination herein.
The Board reiterates its objection to this matter being decided on summary
judgment, an issue raised in proceedings before the Administrative Law Judge (ALJ), contending
that the matter is not ripe for summary judgment because discovery is incomplete. 	(Boardís
Exceptions at 1) 	In support thereof, the Board cites J. Josephson, Inc. v. Crum & Forster,
293 N.J. Super. 170, 203 (App. Div. 1996), claiming that ì[o]ur Appellate Division has
specifically stated ëour case law has made plain, as a matter is not ìripeî for summary judgment
where discovery is incomplete.íî (Ibid.) 	The Board claims that no discovery whatsoever has
occurred in this matter, and that the facts sought by the Board are relevant and material with
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respect to whether a legitimate financial and/or family hardship exists as alleged by petitioners.
(Id. at 2)
Moreover, the Board avers that the ALJ overlooked the inconsistencies in
petitionersí statements and that ì[c]ontradictory factual statements by the Petitioners cannot be
used to create or avoid a material question of fact.î (Ibid.) 	In this regard, the Board points out
that, by letter of August 14, 2003, A.S.ís parents indicated that A.S. would be moving in with his
cousin the week of August 21, 2003 and requested that their son be accepted at North Brunswick
High School ìin the best interest of his education.î (Ibid.) After the Board denied the parentsí
request on September 15, 2003 for A.S. to attend school free of charge in the District, A.S.ís
father submitted an affidavit stating that he and A.S.ís mother lived in Orlando, Florida, and that
A.S. had lived with them until June 2003, at which time A.S. went to live with his cousin and his
wife, petitioners in this matter.1 (Ibid.) The Board claims that A.S.ís father never explained the
discrepancy of when his son actually began living with petitioners or when he and A.S.ís mother
left for India for their business venture. (Ibid.) Additionally, the Board contends that it was only
after A.S. was denied admission to the District that N.S. petitioned for guardianship, and that,
absent further discovery, there will be no way to determine whether guardianship was done
solely to circumvent the applicable residency statutes. (Ibid.)
Additionally, 	the 	Board 	argues 	that 	petitioners 	have 	not 	met 	the 	affidavit
requirements of N.J.S.A. 18A:38-1 and N.J.A.C. 6A:28-2.4 in that: 	1) N.J.S.A. 18A:38-1(b)1
mandates that the childís parents file a sworn statement stating that they are not capable of
supporting or providing care for the child due to a family or economic hardship, and the affidavit
1 There is some confusion in the Initial Decision caused by references to petitioners as A.S.ís parents. Petitioners in
this matter are A.S.ís cousin, N.S., and his wife, J.S. A.S.ís father is H.S. and his mother is V.S.
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provided is ìfiled solely by the childís father, not both parentsî ( Ibid.);2 and 2) ìthe record
reveals no evidence of any economic hardship or family hardship which would warrant A.S.ís
attendance at North Brunswick High School free of charge.î (Id. at 2-3) 	The Board also takes
issue with the ALJís reliance on P.B.K., supra, arguing that, in P.B.K., the Appellate Division
relied on substantial credible evidence in making its determination that the student in that matter
was entitled to attend school in the Tenafly School District free of charge, as opposed to the
instant matter where the Board has been barred from engaging in even minimal discovery to
determine if such facts exist. (Ibid.)
In response, petitioners argue that, ìonce legal guardianship was granted to N.S.,
any fact-sensitive issues that may have required a plenary hearing under the hardship standard of
N.J.S.A. 18A:38-1(b) became mootî in that, ìat that point, A.S. became entitled to attend the
North Brunswick schools as a matter of law by virtue of N.J.S.A. 18A:38-1(a), since his ëlegal
guardianí was domiciled there.î (Petitionersí Reply at 1-2) 	Moreover, citing R.C.P. v. Board of
Education of the Ramapo-Indian Hills Regional High School District, Bergen County, decided
by the Commissioner August 18, 2000, affíd State Board January 3, 2001, petitioners submit
that, as the ALJ concluded in R.C.P., under N.J.S.A. 18A:38-1(a) motivation for obtaining
guardianship is not an issue. (Id. at 2) Petitioners further argue that the law recognizes a number
of ways, including guardianship under Title 3B, in which adults other than natural parents
assume the rights and responsibilities of parenthood, and that, once guardianship is established in
this fashion, ìit is none of the school districtís business what the motivation might be.î (Ibid.)
2 The Commissioner observes that all references to filing a sworn statement with respect to the inability of
supporting or providing care for the child due to a family or economic hardship in N.J.S.A. 18A:38-1 and
N.J.A.C. 6A:28-2.4 specify that such affidavit must be filed by the studentís parent or legal guardian.
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Upon a thorough and independent review of the record, the Initial Decision, the
Boardís exceptions and petitionersí reply thereto, the Commissioner has determined to adopt the
Initial Decision in this matter for the reasons expressed therein. 	In so determining, the
Commissioner notes his concurrence that summary decision is appropriate in this instance in that
there is no genuine issue as to any material fact and petitioners are entitled to prevail as a matter
of law. With respect to the discovery sought by the Board, the Commissioner points out that the
relevancy standard applicable to a determination as to whether to permit discovery is whether the
subject matter to be discovered is admissible or reasonably calculated to lead to admissible and
useful evidence. 	(Initial Decision at 6) 	See, also, Gureghian, supra; Oppenheimer Fund, Inc.,
supra; and Berrie, supra. Even assuming, arguendo, that the Boardís questions are relevant, the
Commissioner does not find the answers to the Boardís questions raise any genuine issue as to
any material fact, nor would the answers to the Boardís questions, considered in the light most
favorable to the Board, support its position or undermine petitionersí position so as to alter the
decision herein. See Brill, supra, at 540.
Moreover, 	the 	Commissioner 	finds 	the 	inconsistency 	raised 	by 	the 	Board
concerning conflicting statements made by A.S.ís parents in their letter of August 14, 2003 and
A.S.ís fatherís affidavit with respect to whether A.S. moved into his cousinís home in June 2003
or August 2003 de minimus in that the Board does not dispute that, at the time A.S. began
attending school in the District in September 2003, A.S. was residing in the North Brunswick
School District with his cousin.
As in P.B.K., supra, A.S., an American citizen, has a relative domiciled in the
United States who has legal guardianship over him and who is willing to support A.S. while his
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parents 	are 	away 	on 	business 	in 	India. 	The 	Commissioner 	points 	out 	that, 	under
N.J.S.A. 18A:38-1(a) and N.J.S.A. 6A:28-2.4(a)1, a district is required to provide a free public
education to any person under the age of 20 who is domiciled within the school district.
N.J.S.A. 6A:28-2.4(a)(1)(i) clarifies that:
A student is domiciled in the district when he or she is living with
a parent or legal guardian whose permanent home is located
within the district.*** (emphasis supplied)
Notwithstanding the Boardís assertion that petitioners became legal guardians of A.S. solely to
circumvent the residency statutes, N.J.S.A. 18A:38-1(a) and N.J.S.A. 6A:28-2.4(a)1 do not
provide for an assessment of the motivations for obtaining legal guardianship. 	Moreover, the
Commissioner points out that the Appellate Court in P.B.K., supra, a case strikingly similar to
the matter herein, rejected this same argument by the Tenafly Board in P.B.K,, supra, finding
that, ìwith E.Y.ís parents over a half a world away, ample reasons existed for a formal
guardianship aside from satisfying the conditions of N.J.S.A. 18A:38-1(a).î 	P.B.K, supra,
at 428. 	In that A.S. is domiciled in North Brunswick with his legal guardian, therefore, the
Commissioner finds that he is entitled to a free public education in the North Brunswick School
District, pursuant to N.J.S.A. 18A:38-1(a) and N.J.S.A. 6A:28-2.4(a)1.
Moreover, for the period of A.S.ís attendance in the Districtís schools from the
beginning of classes in September 20033 until October 16, 2003, the date Petitioner N.S.
obtained guardianship of A.S., the Commissioner concludes that A.S. was entitled to free public
3 The record is silent on the actual date A.S. began attending school in the District. However, when the petition in
this matter was filed on September 5, 2004, an acknowledgement letter was faxed to the Board that same date
notifying the Board of the filing of the within petition and reminding the Board that, pursuant to N.J.S.A. 18A:38-1,
ìno child shall be denied admission to the district during the pendency of proceedings.î The Boardís Answer, dated
September 16, 2003, states that ì***upon receipt of the Petition, A.S. has been temporarily admitted as a student at
the North Brunswick Township High School.î 	(Answer at 1, No. 1) 	Accordingly, it appears that A.S. began
attending school in the District at the beginning of the school year in September 2003.
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education in the Districtís schools, pursuant to N.J.S.A. 18A:38-1(b), in that petitioners have
established that A.S.ís parents are not capable of supporting him or providing care for him due to
a family hardship and that A.S. is not residing with petitioners solely for the purpose of receiving
a free public education in the District. In so determining, the Commissioner points out that the
affidavits filed by petitioners and A.S.ís father establish that petitioners are supporting A.S.
gratis and intend to do so for at least as long as A.S.ís parents are traveling in India, that A.S.ís
parents are unable to care for him because they will be in India for a minimum of eight months
on business and that it would be disruptive to their son academically, emotionally and socially to
require him to leave the United States and travel in India during his senior year. 	(Petitionersí
Motion for Summary Decision, Exhibit 5a at 3 and Exhibit 6a at 4-5) 	In this matter, as in P.B.K,
supra:
This is not an instance when a child and the parents or guardian
establish a convenient residence in another school district to take
advantage of academic or athletic programs. 	No other school in
the United States existed for E.Y. other than the school district of
his uncle and guardian. P.B.K. supra, at 427.
Accordingly, as amplified above, the Initial Decision in this matter is adopted for
the reasons expressed therein.
IT IS SO ORDERED.4
COMMISSIONER OF EDUCATION
Date of Decision: 	May 7, 2004
Date of Mailing: 	May 7, 2004
4 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and
N.J.A.C. 6A:4-1.1 et seq.
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