E.P., on behalf of minor children, J.B. and L.P., v. Board of Education of the City of Burlington, Burlington County, 5/3/2022, (#92-22)

OCR transcription for search; preserved printed pages are authoritative

92-22
New Jersey Commissioner of Education

Final Decision

E.P., on behalf of minor children, J.B. and L.P.,

Petitioner,

Board of Education of the City of Burlington,
Burlington County,

Respondent.

Synopsis

Pro se petitioner challenged the respondent Board’s decision to assign her minor children, J.B. and L.P., to the
Captain James Lawrence Elementary School (Lawrence) following her move to a new address in Burlington that
falls within the district’s attendance area serviced by the Lawrence school. E.P. maintained that J.B. should
remain at his previous school, the Samuel Smith Elementary School (Smith), because she asserted that J.B.’s
504 Plan and disability cannot be accommodated at the Lawrence school. Petitioner contended that the
transfer has been detrimental to J.B.’s academic and emotional progress, and that the Board’s decision was
arbitrary, capricious, and unreasonable. Petitioner also challenged L.P.’s reassignment from Smith to the
Lawrence school. The Board filed a motion for summary decision, which was opposed by petitioner without
any supporting affidavits.

The AL found, inter alia, that: there are no material facts at issue in this case, and the matter is ripe for
summary decision; a school board has discretionary power to determine which school students will attend
within its district, so long as the decision is not contrary to law; in this case, the Board presented ample
evidence supporting its reasons for reassigning J.B. and L.P. to the Lawrence school based on the relocation of
E.P.’s family to a new sending area within the district, and on Board policy; the Board has further shown that
J.B.’s disability can be accommodated at the Lawrence school; E.P.’s assertion that an exception should also be
made for L.P. is without merit; further, L.P. no longer attends either district elementary school, as she is now a
student at the Watts Intermediate School. The ALJ concluded that the Board’s decision to transfer petitioner’s
children to a different elementary school within the district following petitioner’s change of residence was not
arbitrary, capricious, or unreasonable. Accordingly, summary decision was granted in favor of the Board, and
the petition was dismissed.

Upon review of the record, the Commissioner concurred with the ALJ’s conclusion that the Board did not act in
an arbitrary, capricious or unreasonable manner in assigning petitioner’s children to the Lawrence school
based on their residency in the school’s sending district. Accordingly, summary decision was granted in favor
of the Board, and 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.

OAL Dkt. No. EDU 00721-21
Agency Dkt. No. 258-12/20
New Jersey Commissioner of Education
Final Decision
E.P. on behalf of minor children,
J.B. and L.P.,
Petitioner,
v.
Board of Education of the City of Burlington,
Burlington County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL) have
been reviewed and considered.
Upon review, the Commissioner concurs with the Administrative Law Judge (ALJ) that the
Board’s decision to transfer petitioner’s children to a different elementary school within the district
following petitioner’s change of residence was not arbitrary, capricious, or unreasonable. Accordingly,
the Board’s motion for summary decision is granted, and the petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 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.
92-22
May 3, 0222
May 4, 2022

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION
SUMMARY DECISION

OAL DKT. NO. EDU 00721-21
AGENCY DKT. NO. 258-14/20

E.P., ON BEHALF OF MINOR
CHILDREN, J.B. and L.P.,
Petitioner,
Vv.
BOARD OF EDUCATION OF THE CITY
OF BURLINGTON, BURLINGTON COUNTY,

Respondent.

E.P., petitioner, pro se

Jeffrey R. Caccese, Esq., for respondent (Comegno Law Group, P.C., attorneys)

Record Closed: February 18, 2022 Decided: March 24, 2022

BEFORE CARL V. BUCK III, ALJ:

STATEMENT OF THE CASE

Petitioner E.P., on behalf of her minor child, J.B., challenges the decision of the
Burlington City Board of Education, Burlington County (Board) to assign J.B. to attend the
Captain James Lawrence Elementary School (Lawrence) due to parent moving to a
location in the district serviced by the Lawrence school. Before the move, J.P. had

New Jersey is an Equal Opportunity Employer

OAL DKT. NO. EDU 00721-21

attended Samuel Smith Elementary School (Smith) school. E.P. maintains that J.B.
should remain at Smith to accommodate J.B.’s special needs because J.B.'s 504 Plan
and J. B.'s disability cannot be accommodated at Lawrence. Petitioner states that this
transfer has been detrimental to J.B.’s academic and emotional progress, and the Board’s
decision was arbitrary, capricious, and unreasonable.’ Petitioner, on behalf of her minor
child, L.P., challenges the decision of the Board to assign L.P. to attend the Lawrence
School due to parent moving to a location in the district serviced by the Lawrence school.
Before the move, L.P. had attended Smith School.

PROCEDURAL HISTORY

The pro se petition of appeal was filed with the Commissioner of Education
(Commissioner) on or about December 23, 2020. It was transmitted to the Office of
Administrative Law (OAL) on January 19, 2021, to be heard as a contested case, pursuant
to N.J.S.A. 52:14B-1 et seq. and N.J.S.A. 52:14F-1 et seq. On August 3, 2021, the Board
filed a motion for summary decision, pursuant to N.J.A.C. 1:1-12.5. On September 1,
2021, E.P. filed opposition to the motion, with no responding affidavits, contrary to
NJAC. 1:1-12.5(b). Respondent's response was filed on September 13, 2021.
Petitioner filed additional information on September 28, 2021, to which respondent
objected as submitted out of time. A number of other documents were submitted and
Oral argument on the motion was scheduled for December 15, 2021. Petitioner did not
appear on that date, but the Tribunal allowed the parties to submit final documents until
December 27, 2021. Additional documents were filed, and the record closed on February
18, 2022.

FACTUAL DISCUSSION AND FINDINGS

From the documentary evidence provided by the parties and information gleaned
at the oral argument, | FIND the following as FACT:

1 EP. has also brought a complaint against the Board with the Office of Civil Rights at the U.S. Department
of Education alleging the Board has failed to accommodate J.B.’s disability.

OAL DKT. NO. EDU 00721-21

1. The City of Burlington Public School District (District) is comprised of four
schools, Burlington City High School, which serves students in grades 7-12, Wilbur Watts
Intermediate School, which serves students in grades 3-6, Samuel Smith Elementary
School and Captain James Lawrence Elementary school, which both serve students up

through second grade.

2. All students in grades 3-6 attend Wilbur Watts Intermediate School (Watts) and
all students grades 7-12 attend Burlington City High School (BCHS) regardless of where
they reside within the District.

3. Students in second grade and younger attend either Samuel Smith Elementary
School (Smith) or Captain James Lawrence Elementary School (Lawrence) depending

on where they reside within the territorial boundaries of the District.

4, The Board maintains an Elementary Zoning Map identifying the attendance

areas of the elementary schools.

5. Petitioner is the mother of three children attending school in the District, J.B.,
L.P. and C.A.

6. On or about October 14, 2020, a school social worker from Watts who was
involved with C.A. was informed that Petitioner may have relocated. That information was

referred to the Board's residency officer, James Barnes.

7. After receiving the referral, Mr. Barnes investigated and determined that
Petitioner was residing at 2-- C---- Street, which is in the Lawrence sending area.

Petitioner previously lived at 9-- S--- Avenue, which is in the Samuel Smith sending area.

8. On October 29, 2020, Mr. Barnes advised the school secretaries at Watts and
at Smith of the address change since petitioner had children at each of those schools at
that time. That information was passed on to the Administration, who determined that
J.B. and L.P. would be transferred to Lawrence due to petitioner's change in residency

and in accordance with Board policy.

9. Petitioner was informed through correspondence from Superintendent, John
Russell, Ed.D., dated November 30, 2020, that L.P. and J.B. would be transferred to

OAL DKT. NO. EDU 00721-21

Lawrence effective January 4, 2021. Dr. Russell's letter explained that petitioner's new
address is zoned for Lawrence, rather than Smith, and referred her to Board Policy 5120,
which gives the Board the discretion to assign students to schools and affirms that

students shall attend school based on the attendance area of their residence.

10. During the 2020-2021 school year, petitioner opted for J.B. and L.P. to attend
school all virtually, which was a choice offered to all students due to the COVID-19
pandemic. As such, the transfer from Smith to Lawrence did not require either J.B. or

L.P. to physically change buildings.

11. Although mid-year, in District transfers are not tracked by the Administration

on a year-to-year basis.

12. C.A. was a fourth-grade student at Watts at the time this appeal was filed.
C.A.'s school of attendance was not impacted by the petitioner's change of residence and

will not be impacted going forward.

13. L.P. was a second grader at the time this appeal was filed. By virtue of
petitioner's change of residence, on January 4, 2021, L.P. was transferred from Smith to
Lawrence. However, during the 2021-2022 school year, she will attend Watts, and her

school of attendance will no longer be impacted by petitioner's residence.

14. J.B. was a first-grade student at the time this appeal was filed. By virtue of
petitioner’s change of residence, on January 4, 2021, J.B. was transferred from Smith to
Lawrence. During the 2021-2022 school year he will attend Lawrence instead of Smith.
Beginning in the 2022-2023 school year he will attend Watts.

15. On December 5, 2020, petitioner wrote a letter expressing her disagreement
with J.B. and L.P. being transferred to Lawrence expressing her belief that it was not in
J.B.’s best interest to be transferred focusing on her dissatisfaction with the

implementation of J.B.’s 504 Plan, rather than any dispute about her residency.

16. Petitioner met with Dr. Russell on December 23, 2020, to discuss additional

supports the Board was offering to J.B. in response to petitioner's concerns about the

OAL DKT. NO. EDU 00721-21

implementation of the 504 Plan. At the meeting Dr. Russell advised that the transfer

would become effective on January 4, 2021, after the winter break.
17. Petitioner filed this appeal on December 23, 2020.

18. Petitioner filed a simultaneous complaint against the Board with the Office for
Civil Rights within the U.S. Department of Education alleging the Board has failed to
accommodate J.B.’s disability by improperly implementing his 504 Plan. That matter
remains pending.

19. The petition lists 2-- C------ Street as petitioner's address, which is in the

Lawrence attendance area.

20. Petitioner provided a note from J.B.’s doctor with her petition wherein his doctor
opined that a transfer was not in J.B.’s best interest.

21. J.B. was absent for nineteen (19) days prior to the implementation of the
transfer, during the first seventy (70) days of school. J.B. missed another ten (10) days
after the transfer and did not begin attending school at Lawrence until after she was
advised of the Board’s obligation to notify DCP&P of his truancy.

22, Subsequent to the filing of this appeal, in a letter written to the Court, petitioner
expressed her concern that J.B.’'s visual impairment would make it physically challenging
for him to switch buildings from Samuel Smith to Captain James Lawrence, as he would

have to learn a new building layout.

23. J.B. has not been physically in school since March of 2020, at which time he

was in kindergarten.

24. The Board initiated an Orientation and Mobility referral for J.B. through the
New Jersey Commission for the Blind and Visually Impaired (Commission) which has

provided assistive technology and services.

LEGAL ANALYSIS AND CONCLUSIONS

OAL DKT. NO. EDU 00721-21

Summary Decision Standard

A summary decision “may be rendered if the papers and discovery which have
been filed, together with the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled to prevail as a matter of

law.” NJAC. 1:1-42.5(b). That rule is substantially similar to the summary judgment
rule embodied in the New Jersey Court Rules. See R. 4:46-2; Judson v. Peoples Bank

& Trust Co. of Westfield, 17 N.J. 67, 74 (1954).

In Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995), the New Jersey Supreme

Court addressed the appropriate test to be employed in determining the motion:

“[A] determination whether there exists a ‘genuine issue’ of
material fact that precludes summary judgment requires the
motion judge to consider whether the competent evidential
materials presented, when viewed in the light most favorable
to the non-moving party, are sufficient to permit a rational fact
finder to resolve the alleged disputed issue in favor of the non-
moving party. The ‘judge’s function is not... to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”

[Ild. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986)).]

In evaluating the merits of the motion, “[al]ll inferences of doubt are drawn against
the movant and in favor of the opponent of the motion.” Judson, 17 N.J. at 75. “Whena
motion for summary decision is made and supported, an adverse party in order to prevail

must by responding affidavit set forth specific facts showing that there is a qenuine issue

which can only be determined in an evidentiary proceeding.” N.J.A.C. 1:1-12.5(b)}

(emphasis added). “If the opposing party offers no affidavits or matter in opposition, or
only facts which are immaterial or of an insubstantial nature, a mere scintilla, fanciful,
frivolous, gauzy or merely suspicious, he[/she] will not be heard to complain if the court
grants summary judgment.” Judson, 17 N.J. at 75 {internal quotation marks and citations

omitted). When the evidence “is so one-sided that one party must prevail as a matter of

law,” the trial court should not hesitate to grant summary judgment. Liberty Lobby, 477
U.S. at 252.

OAL DKT. NO. EDU 00721-21

Having reviewed the parties’ submissions, | CONCLUDE that no genuine issues
of material fact exist which require an evidentiary hearing, and that this matter is therefore

ripe for summary decision.

SUMMARY DECISION

It is long and well established that a school board has discretionary power to
determine which school a student will attend within its district, so long as the decision is
not contrary to law. State ex rel. Pierce v. Union Dist. School, 46 N.J.L. 76, 77-78 (1884).

The law requires that school boards shall “[mJake, amend and repeal rules, not

inconsistent with . . . title [18:A] or with the rules of the state board, for. .. the government
and management of the public schools and public schoo! property of the district.” N.J.S.A.
18A:11-1¢. “Each school district shall provide, for all children who reside in the district . ..
suitable educational facilities including proper school buildings and furniture and

equipment, [and] convenience of access thereto.” N.J.S.A. 18A:33-1.

“Convenience of access” has been construed to be a matter of distance between
a student’s residence and assigned school, rather than the parents’ convenience for
personal reasons. See, e.g., Van Note v. Branchburg Bd. of Educ., 2001 N.J. AGEN
LEXIS 201 (April 16, 2001) (citing N.J.S.A. 18A:39-1 and concluding that board's decision
to limit transportation of child of divorced parents with joint physical custody to the

residence of one parent only was not arbitrary, capricious, or unreasonable). It is
indisputable that by moving within the district, petitioner's new home places her family in
the perimeter of the sending area for the Lawrence school. The contention is that J.B.

should remain in the Smith school, which is not only not in the sending area.

An “action of the local board which lies within the area of its discretionary powers
may not be upset unless patently arbitrary, without rational basis or induced by improper
motives.’”” Parsippany-Troy Hills Educ. Ass’n v. Bd. of Educ., 188 N.J. Super. 164, 167
(1983) (quoting Kopera v. West Orange Bd. of Educ., 60 N.J. Super. 288, 294 (App.
Div.1960)). The Board’s discretionary decision to assign J.B. to Lawrence “‘is entitled to

a presumption of correctness and will not be upset unless there is an affirmative showing

OAL DKT. NO. EDU 00721-21

au

that such decision was arbitrary, capricious or unreasonable.” Ibid. (quoting Thomas v.
Morris Twp. Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div.1965)).

The arbitrary, capricious, or unreasonable standard of review “is narrow in its
scope and consequently imposes a heavy burden on those who challenge actions of
boards of education.” Piccoli v. Bd. of Educ. of the Ramapo-Indian Hills Req’l High Sch.
Dist., 1999 N.J. AGEN LEXIS 1314 at 11-12 (Mar. 10, 1999).

In the law, “arbitrary” and “capricious” means having no
rational basis. . . . Arbitrary and capricious action of
administrative bodies means willful and unreasoning action,
without consideration and in disregard of circumstances.
Where there is room for two opinions, action is not arbitrary or
capricious when exercised honestly and upon due
consideration, even though it may be believed that an
erroneous conclusion has been reached. Moreover, the court
should not substitute its judgment for that of an administrative
or legislative body if there is substantial evidence to support
the ruling.

(Id. at 12 (quoting Bayshore Sewerage Co. v. Dept. of Envtl.
Prot., 122 N.J. Super. 184, 199-200 (Ch. Div. 1973) (internal
citations omitted), affd_o.b., 131 N.J. Super . 37 (App . Div.
1974)).]

In order to defeat the Board’s summary decision motion, E.P. must therefore
“demonstrate that the Board acted in bad faith, or in utter disregard of the circumstances
before it.” G.H. v. Bd. of Educ. of Franklin Lakes, 2014 N.J. AGEN LEXIS 19 (Feb. 24,
2014). There has been no such showing. Indeed, to the contrary, there is no evidence

of bad faith, petitioner has assented to the arrangements and accommodations made for

J.B. at the Lawrence school.

The Commissioner routinely adopts initial decisions dismissing petitions of appeal
when parents object to their child's involuntary assignment to a different school to reduce
or equalize class sizes and resources. See, e.g., C.F. v. Bd. of Educ. of Twp. of
Pequannock, 2018 N.J. AGEN LEXIS 996 (Sept. 26, 2018), adopted Comm’r, 2018 N.J.
AGEN LEXIS 996 (Nov. 2, 2018) (dismissing appeal of kindergartener’s school

assignment and concluding that school board’s approval of students’ school assignment

OAL DKT. NO. EDU 00721-21

plan to address decreasing enrollment and need to balance class sizes was not arbitrary,
unreasonable, or made in bad faith); J.P. v. Bd. of Educ. of S. Brunswick, 2002 N.J. AGEN
LEXIS 952 (Dec. 17, 2002), adopted Comm’, 2003 N.J. AGEN LEXIS 1013 (Feb. 3,

2003) (dismissing appeal of grade schoolers’ new school assignment and concluding that

redistricting grade schools due to overcrowding, population growth, and acquisition of
new elementary school was not arbitrary, capricious, or unreasonable, even if it was not
the best of all proposed redistricting plans considered by the board); Piccoli, 1999 N.J.
AGEN LEXIS 20 (Jan. 12, 1999), adopted Comm’r, 1999 N.J. AGEN LEXIS 1314 (Mar.

10, 1999) (dismissing appeal of amended high school assignment policy and concluding

that school board's amendment of policy was not arbitrary, capricious, or unreasonable,
and was a product of issues of overcrowding at one school, under-enrollment at another,
and future use of the district's capital resources and further educational programs); G.M.
v. Roselle Park Borough Bd. of Educ., 1994 NJ. AGEN LEXIS 1008 (Dec. 15, 1993),
adopted Comm'r, (Jan. 26, 1994) (dismissing appeal of school board’s change of

geographic boundaries for kindergartners and concluding that board’s goal of evenly
distributing students within the district schools was reasonable exercise of authority, not
arbitrary, capricious, or unreasonable, and did not result in child being treated differently
than other similarly situated students. “[T]he school board may not look at each individual
child and decide whose personal reasons are more compelling for attendance at one
school than another. Absent some form of actual impediment to attendance or
extraordinary circumstance boards must act in a manner that treats ail students equally.”);
Fullen v. Middletown Twp. Bd. of Educ., 1986 $.L.D. 582, 598, 601 (Jan. 27, 1986),
adopted Comm'r, 1986 $.L.D. 603 (dismissing challenge to school redistricting plan to

alleviate enrollment imbalances, underutilization of some facilities, and overutilization of
other facilities, and concluding that “[a] policy or rule of a board of education is reasonable
if itis designed to achieve a legitimate goal... . While pupils have a constitutionai right to
receive a thorough and efficient program of education, there is no corollary right to receive
such education in a specific schoolhouse in the district.”); Marcewicz v. Bd. of Educ. of
Pascack Valley Reg'l High Sch. Dist., 1972 $.L.D 619, 625-26 (Nov. 28, 1972) (dismissing

challenge to school redistricting plan to relieve overcrowding of high school and

concluding “the Board acted in a reasonable, deliberate and thorough manner to examine
the enrollment projections over a period of weeks prior to the time of its final action,” as

“[i]t is the Board alone which is empowered by N.J.S.A. 18A:11-1 to make rules for its

OAL DKT. NO. EDU 00721-21

own ‘government’ and the ‘government’ of the public schools entrusted to its
supervision"); Rutherford v. Bd. of Educ. of Maywood, 1963 S.L.D. 129, 130 (May 24,
1963) (“Petitioner's claim of personal hardship, however sincere, does not raise a

sufficient consideration to outweigh the educational values which respondent considers
will emerge from classes limited in size and equalized with respect to the teachers’ skills

and experience.").

In this case, the Board indisputably has the management prerogative to adopt
policies addressing the assignment of students within the District, “which cannot be
usurped or assumed by the Commissioner . .. absent a definitive showing of bad faith or
arbitrary actions taken in bad faith without a rational basis.” C.F., 2018 N.J. AGEN 996
at 15-16. The Board has presented ample evidence supporting its reasons for the
establishment of new attendance within the new sending area and has also shown that

J.B.’s disability can be accommodated at the --- school.

E.P. in addition to concerns expressed for J.B. also asserts that an exception
should be made for L.P. when both children are in the appropriate area for the Lawrence

school.

Under these circumstances, | CONCLUDE that the Board has met its burden to
prove by a preponderance of the credible evidence that its decision to transfer J.B. was
not arbitrary, capricious, or unreasonable, and that J.B.’s education, taking into
consideration his established disabilities, can be accommodated at the Lawrence school
and therefor the Board’s motion for summary decision as to J.B. should therefore be
GRANTED as a matter of law.

Further, | CONCLUDE that the Board has met its burden to prove by a
preponderance of the credible evidence that its decision to transfer L.P. was not arbitrary,
capricious, or unreasonable, and that LP. as residing in the Lawrence school area is
appropriately designated to attend the Lawrence school and therefor the Board’s motion
for summary decision as to L.P. should therefore be GRANTED as a matter of law.

10

OAL DKT. NO. EDU 00721-21

ORDER

It is therefore ORDERED that the Board’s motion for summary decision is hereby
GRANTED, and the petition of appeal is hereby DISMISSED.

| 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.

11

OAL DKT. NO. EDU 00721-21

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.

March 24 2022

DATE CARL V. BUCK Ill, ALJ
Date Received at Agency: March 24, 2022
Date Mailed to Parties: March 24, 2022

CVBilam

12

OAL DKT. NO. EDU 00721-21

APPENDIX

EXHIBITS

For Petitioner:

Documentary Submissions

For Respondent:

Motion for Summary Decision and Order dated August 3, 2021

Additional Documentary Submissions

13