J.M., ON BEHALF OF MINOR CHILD, J.M. V. BOARD OF EDUCATION OF THE TOMS RIVER REGIONAL HIGH SCHOOL DISTRICT, OCEAN COUNTY, 12/13/01 (#486-01)

486-01
J.M., on behalf of minor, J.M., 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE TOMS 	: 	DECISION
RIVER REGIONAL HIGH SCHOOL
DISTRICT, OCEAN COUNTY, 	:
RESPONDENT. 	:
__________________________________________:
SYNOPSIS
Petitioner 	challenged 	the 	determination 	of the 	Districtís 	assistant superintendent 	denying
admission to the Districtís schools to her son. 	Petitioner sought admission of her son as an
affidavit student or pursuant to the Districtís policy regarding attendance of nonresident students.
The ALJ determined that petitionerís son was not entitled to attend respondentís schools because
he did not fit within the Boardís policy for admitting nonresident students. Therefore, the Board
had not acted in an arbitrary or capricious manner.
The Commissioner noted that this matter presents two issues: 1) J.M.ís entitlement to attend
school in the District pursuant to N.J.S.A. 18A:38-1b(1), the ìaffidavit studentî statute; and 2)
the application of the Boardís policy regarding the attendance of nonresident students in the
District. 	The Commissioner then found that petitioner had not demonstrated J.M.ís entitlement
to attend school pursuant to N.J.S.A. 18A:38-1b. 	Additionally, the Commissioner determined
that petitioner offered nothing in this record that would warrant an order compelling the District
to accept J.M. as a nonresident student without payment of tuition.
December 13, 2001

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OAL DKT. NO. EDU 230-01
AGENCY DKT. NO. 443-12/00
J.M., on behalf of minor, J.M., 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE TOMS 	: 	DECISION
RIVER REGIONAL HIGH SCHOOL
DISTRICT, OCEAN COUNTY, 	:
RESPONDENT. 	:
__________________________________________:
The record of this matter and the Initial Decision of the Office of Administrative
Law have been reviewed. The parties did not file exceptions to the Initial Decision.
The instant matter presents two issues: first, J.M.ís entitlement to attend school in
the District pursuant to N.J.S.A. 18A:38-1b(1), the ìaffidavit studentî statute; and second, the
application of the Boardís policy regarding the attendance of nonresident students in the District.
With respect to the first issue, the Commissioner notes that the District appears to
have applied an incorrect legal standard to J.M.ís situation or, at least, to have miscommunicated
the proper legal standard to petitioner and her husband.1 Specifically, the pertinent statute does
not require, and, accordingly, a local district may not demand, that legal guardianship must be
1 See Initial Decision at 3. The letter written by Assistant Superintendent John L. Gluck, dated December 1, 2000
(Exhibit R-6), states, in pertinent part:
Please be advised that the Toms River Regional School District does not accept
the claim of residence enrollment of your son.
In your letter dated November 21, 2000, you state that ì[J.] resides with
Mr. Cassidy during the weekî. If that is in fact true, Mr. Cassidy must declare
guardianship and you must claim that you are not capable of supporting or
caring for your son due to family and/or economic hardship.*** 	(emphasis
supplied)

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obtained before enrollment will be considered for a student living with a person other than a
parent or legal guardian.2 N.J.S.A. 18A:38-1b(1).3
Furthermore, where a local board seeks to remove a currently enrolled student
from its schools, such as J.M., the parent, legal guardian, adult student or resident keeping an
ìaffidavit studentî is entitled by law to a hearing before the board of education. 	N.J.S.A.
18A:38-1b(2). 	Under such circumstances, the board of education, rather than a particular
administrator, is authorized to make the final determination as to the studentís eligibility or
ineligibility to attend school in the district and, certainly, no student may be removed except by
vote of the district board of education. 	(Ibid.) 	There is no indication on this record that
petitioner received a hearing and Board vote prior to J.M.ís removal from school.
Notwithstanding these deficiencies in the Districtís handling of J.M.ís enrollment
dispute, petitioner had an opportunity through the instant contested case proceedings to provide
information that would have demonstrated her sonís entitlement pursuant to N.J.S.A. 18A:38-
1b(1) so as to warrant an order permitting J.M.ís continued attendance in the District free of
charge. On the present record, however, the Commissioner cannot find that she did so.
With respect to the second issue, the application of the Boardís policy regarding
the attendance of nonresident students in the District, the Commissioner notes that the record
does not include a copy of the Boardís attendance policy for nonresidents. 	Additionally, it is
2 Moreover, although a local board should offer, where appropriate, accurate information about the enabling statute,
N.J.S.A. 18A:38-1 et seq., its related policies, and the consequences of noncompliance, it is not the role of a local
board to provide legal advice to parents, guardians and residents regarding how they may constitute their families
and relationships in order to effectuate compliance with the residency law, particularly where the advice may carry
legal consequences beyond those which the parties may presently anticipate. E.G.P., on behalf of minor child, M.B.
v. Board of Education of the Borough of Rutherford, Bergen County, decided by the Commissioner
December 21, 1998, affíd State Board of Education June 2, 1999.
3 See, also, N.J.A.C. 6A:28-2.6(b)1, adopted by the State Board of Education on November 7, 2001. This rule will
become effective upon publication in the New Jersey Register.

15
unclear whether the Board, in fact, issued a decision about the application of its policy to the
particular facts in this matter. However, the pertinent statute clearly provides that acceptance of
nonresident students is discretionary on the part of a local board, a long as its policies are fairly
and evenly applied. 	N.J.S.A. 18A:38-3. 	On this record, petitioner offered nothing that would
warrant the Commissioner to compel the Board to accept her son as a nonresident student
without payment of tuition.
Accordingly, for the reasons expressed herein, the Commissioner concurs with the
ALJ that the relief sought by petitioner in this matter must be denied.4
IT IS SO ORDERED. 5
COMMISSIONER OF EDUCATION
Date of Decision: 	December 13, 2001
Date of Mailing: 	December 13, 2001
4 Such denial is without prejudice to any future Board consideration of J.M.ís entitlement under the proper legal
standard for affidavit students or pursuant to its policy on nonresident students.
5 This decision, as the Commissionerís final determination, 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., within 30 days of its filing. Commissioner
decisions are deemed filed three days after the date of mailing to the parties.