T.H., on behalf of minor child, A.E., v. Board of Education of the City of Jersey City, Hudson County, (#294-23)

OAL Dkt. No. EDU 03234-23
Agency Dkt. No. 99-4/23
New Jersey Commissioner of Education
Final Decision
T.H., on behalf of minor child, A.E.,
Petitioner,
v.
Board of Education of the City of Jersey City,
Hudson County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
and the exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4, have been reviewed and
considered. The Jersey City Board of Education (Board) did not file a reply.
This matter involves petitioner’s request for her daughter, A.E., to be transferred to the
Bayonne school district at the Board’s expense because the Board allegedly failed to comply with
A.E.’s 504 Plan.1 Petitioner initially sought relief on an emergent basis, which was denied by the
Commissioner in May 2023. Subsequently, the Board filed a motion to dismiss the underlying
petition for failure to state a claim upon which relief may be granted.
After reviewing the parties’ submissions, the Administrative Law Judge (ALJ) granted
the Board’s motion upon concluding that petitioner’s request lacked legal support. Citing
1 “504 Plan” refers to Section 504 of the Rehabilitation Act of 1973 as amended, codified at 29 U.S.C. § 794, a federal
law that protects qualified individuals from discrimination based upon their disability.
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2
N.J.S.A. 18A:38-1(a), which entitles persons between ages five and twenty to attend public school
free of charge in the school district where they are domiciled, the ALJ found that it was
undisputed that petitioner and A.E. are domiciled in Jersey City. Therefore, the ALJ concluded
that A.E. is entitled to attend public school free of charge in Jersey City, not in Bayonne. In
addition, the ALJ concluded that there is no legal basis to compel the Board to pay for A.E. to
attend school in Bayonne.
In her exceptions, petitioner argues—as she did before the ALJ—that the Board should
pay for A.E. to attend school in Bayonne because it has failed to comply with A.E.’s 504 Plan.
However, her claims regarding the Board’s violation of the 504 Plan are unsubstantiated.2
Furthermore, she does not dispute the fact that she and A.E. are domiciled in Jersey City.
Upon review, the Commissioner adopts the ALJ’s Initial Decision as the final decision in
this matter. The Commissioner concurs with the ALJ that there is no legal basis under State school
laws to compel the Board to pay for A.E. to attend school in Bayonne.3
2 In connection with the May 1, 2023, order denying petitioner’s application for emergent relief, adopted by the
Commissioner, the ALJ found as undisputed fact that petitioner agreed to an initial 504 Plan for A.E. on November
2022, and agreed to revisions on February 17, 2023, and March 15, 2023. T.H., on behalf of minor child, A.E. v. Board
of Education of the City of Jersey City, Hudson County, OAL Dkt. No. EDU 03234-23, Agency Dkt. No. 99-4/23, Order
on Emergent Relief (May 1, 2023), at 2. In addition, the ALJ found as undisputed fact that the only recent incident
alleging a health and safety issue involved A.E. visiting the nurse on March 31, 2023, due to dizziness and nausea.
Id. at 3. Petitioner expressed concern that the nurse did not call her directly on that date, but instead told A.E. to
call her. Ibid. In any event, while on speaker phone with A.E., petitioner directed the nurse to administer A.E.’s
medication. Ibid. The ALJ concluded that “[t]he only genuine 504 Plan health safety issue was resolved without
hospitalization or apparently any medical follow-up.” Id. at 5. Finally, the ALJ held that “[t]here is no support for
petitioner’s assertions that A.E.’s schoolwork or grades have been impacted by violation of her 504 Plan.” Id. at 5-
6. The ALJ incorporated these factual findings into the Initial Decision presently before the Commissioner. T.H., on
behalf of minor child, A.E. v. Board of Education of the City of Jersey City, Hudson County, OAL Dkt. No. EDU 03234-
23, Agency Dkt. No. 99-4/23, Initial Decision (August 18, 2023), at 2.
3 As petitioner continues to rely upon various federal laws to support her position, she is reminded that the
Commissioner’s jurisdiction is limited to the hearing and deciding of controversies and disputes arising under State
school laws in accordance with N.J.S.A. 18A:6-9.

3
Accordingly, the Board’s motion is granted, and the petition of appeal is hereby dismissed.
IT IS SO ORDERED.4
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
4 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-
9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the
date of mailing of this decision.
September 29, 2023
October 2, 2023

294-23
New Jersey Commissioner of Education
Final Decision
T.H., on behalf of minor child, A.E.,
Petitioner,
v.
Board of Education of the City of Jersey City,
Hudson County,
Respondent.
Synopsis
Pro se petitioner sought emergent relief against respondent, the Jersey City Board of Education (Board or
Jersey City), demanding a “federal audit” of her daughter’s school records to verify the appropriateness of
A.E.’s academic placement, as well as an out of district placement for her at Bayonne High School at the
Board’s expense. Petitioner alleged that Jersey City failed to implement and execute A.E.’s “Section 504 Plan”
(Section 504 of the Rehabilitation Act of 1973 as amended, codified at 29 U.S.C. § 794, a federal law that
protects qualified individuals from discrimination based upon their disability). Emergent relief was denied, and
thereafter the Board filed a motion to dismiss for failure to state a claim upon which relief may be granted.
The ALJ found, inter alia, that: there is no dispute that petitioner and her daughter are domiciled in Jersey City;
pursuant to N.J.S.A. 18A:38-1, A.E. is entitled to a free public education in Jersey City schools; there is no
factual basis to show that petitioner is a resident of Bayonne or falls within any exception, such as a choice
school district, that would allow A.E. to attend Bayonne High School at Jersey City’s expense; the Bayonne
Board of Education is not party to this case and there is nothing to indicate that Bayonne has agreed to allow
A.E. to attend as a non-resident student pursuant to N.J.A.C. 6A:22-2.2. The ALJ concluded that there is simply
no legal support for petitioner’s demand that A.E. be allowed to attend school in Bayonne at Jersey City’s
expense because of the Board’s alleged failures regarding her 504 Plan. 	Accordingly, the ALJ granted the
Board’s motion and dismissed petitioner’s appeal with prejudice.
Upon review, the Commissioner adopted the Initial Decision of the OAL as the final decision in this matter. In
so doing, the Commissioner concurred with the ALJ that there is no legal basis under state school laws to
compel the Board to pay for A.E. to attend school in Bayonne. The petition was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has
been neither reviewed nor approved by the Commissioner.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION ON
MOTION TO DISMISS
OAL DKT. NO. EDU 03234-23
AGENCY DKT. NO. 99-4/23
T.H. ON BEHALF OF A.E.,
Petitioner,
v.
BOARD OF EDUCATION OF THE
CITY OF JERSEY CITY, HUDSON COUNTY,
Respondent.
___________________________________
T.H., on behalf of A.E. petitioner pro se
Cherie L. Adams, Esq., for respondent Board of Education of the City of Jersey City
(Adams, Gutierrez and Lattiboudere, attorneys)
Record Closed: August 7, 2023 	Decided: August 18, 2023
BEFORE GAIL M. COOKSON, ALJ:
Petitioner T.H. (petitioner or T.H.) filed a Petition of Appeal with the Department of
Education on or about April 14, 2023, seeking emergent relief against the Board of
Education of the City of Jersey City (Jersey City or District) in the form of a (1) “federal audit”
of her fourteen-year-old daughter A.E.’s records to verify proper academic placement; and,
(2) an out-of-district placement for her at Bayonne High School with tuition paid for by Jersey

OAL DKT. NO. EDU 03234-23
2
City for alleged failure to implement and execute A.E.’s Section 504 Plan, 34 C.F.R.
§104.36.
The New Jersey Department of Education, Office of Controversies and Disputes,
transmitted only the Application for Emergent Relief to the Office of Administrative Law
(OAL) on or about April 17, 2023. 	The matter was assigned to the undersigned for oral
argument and was scheduled for April 24, 2023. On that date, discussions were held off-
the-record, and the matter was continued until April 28, 2023, in order to allow counsel for
the District the opportunity to consult with her client because the prior week had been spring
break. Oral argument was held on April 28, 2023, and thereafter, I issued an Order denying
the requested emergent relief on May 1, 2023. The Commissioner affirmed that denial and
returned the case to the OAL for a hearing on the underlying merits petition.
Thereafter, the District filed a Motion to Dismiss for the failure of petitioner to state a
claim upon which relief may be granted. Briefs and other submissions have been presented
and the motion is now ripe for adjudication. I adopt and incorporate my earlier findings as if
set forth at length herein. 	While petitioner is not represented and did not present legal
arguments opposing the motion, I have carefully reviewed the applicable law.
LEGAL DISCUSSION AND CONCLUSIONS OF LAW
For the reasons set forth below after due consideration of the written submissions, I
CONCLUDE that petitioner’s request for her daughter to be transferred to a different public
school at District expense must be DENIED.
On a motion to dismiss for failure to set forth a claim upon which relief may be
granted, I must accept all the allegations as true and decide whether they are sufficient
as a matter of law. I must grant such a motion where the petition fails to properly assert
a cause of action upon which the Commissioner may grant relief. N.J.A.C. 6A:3-1.10(a).
See Bank Leumi USA v. Kloss, 243 N.J. 218, 229 (2020); R. 4:6-2. These same principles
are applicable at the OAL. City of Hackensack v. Winner, 82 N.J. 1, 29 (1980). A motion

OAL DKT. NO. EDU 03234-23
3
to dismiss or for summary decision constitutes a hearing on the papers; i.e., stands in
place of an evidentiary hearing.
Petitioner asserts that the District’s alleged failures as to her daughter’s 504 Plan
entitles A.E. to attend school in Bayonne at the expense of the Jersey City Board of
Education. I CONCLUDE that there is no legal support for this demand.
N.J.S.A. 18A:38-1 states in relevant part:
Public schools shall be free to the following persons over five
and under 20 years of age: a. Any person who is domiciled
within the school district; . . .
There is no dispute that the petitioner and A.E. reside at 271 4th Street, Jersey
City, New Jersey. 	There is also no dispute that Jersey City is petitioner’s domicile.
Accordingly, there are simply no facts presented that show the petitioner is a resident of
Bayonne or falls within any exception that would allow A.E. to attend Bayonne at Jersey
City’s expense (such as a choice school district). 	While a local board of education has
the discretion to admit non-resident students with or without payment of tuition with the
consent of the board of education of that district, N.J.A.C. 6A:22-2.2, there is no indication
that the Bayonne Board of Education has agreed to allow A.E. to attend as a non-resident
student either with or without tuition. This regulation also establishes that acceptance of
non-resident students is voluntary on the part of the other district. 	Further, Bayonne
Board of Education is not a party hereto.
Petitioner may seek to obtain tuition-free enrollment from Bayonne; she may pay
for out-of-district tuition for her daughter in Bayonne; or, she is free to move into that
District. But she is not free and has no legal basis to force this District to provide a free
public education in a separate and distinct public school district.

OAL DKT. NO. EDU 03234-23
4
ORDER
For the reasons set forth above, it is ORDERED that petitioner’s petition is and the
same is hereby DENIED and the matter is DISMISSED with prejudice.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify, or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked “Attention: 	Exceptions.” 	A copy of any exceptions must be sent to the
judge and to the other parties.
August 18, 2023
DATE 	GAIL M. COOKSON, ALJ
Date Received at Agency: 	8/18/23
Date Mailed to Parties: 	8/18/23
id