Y.C., on behalf of minor child, A.F. v. Board of Education of the City of Perth Amboy, Middlesex County, 11/21/2024, (#433-24)

433-24
New Jersey Commissioner of Education
Final Decision
Y.C., on behalf of minor child, A.F.,
Petitioner,
v.
Board of Education of the City of Perth Amboy,
Middlesex County,
Respondent.
Synopsis
Petitioner challenged the long-term suspension and expulsion imposed by the respondent Board upon
her eighth-grade son, A.F., following a February 27, 2023 incident wherein A.F. pulled a fire alarm that
caused an unnecessary evacuation of the Samuel E. Shull Middle School. Petitioner contended that the
Board, inter alia, failed to follow applicable statutes and regulations when imposing a long-term
suspension upon A.F., rendering its decision arbitrary, capricious, and unreasonable. Petitioner sought,
inter alia, orders compelling the Board: to allow A.F. to return to the general education setting
immediately; 	to compel the Board to expunge any reference to a long-term suspension from A.F.’s
student record; and to allow A.F. to return in person to Perth Amboy High School at the start of the
2023-2024 school year. The Board filed a motion to dismiss. Petitioner filed opposition and a cross-
motion for summary decision.
The ALJ found, inter alia, that: there are no genuine issues of material fact in this case, and matter is
ripe for summary decision; 	the issue in this case is whether the Board followed the procedural
mandates in N.J.A.C. 6A:16-7.3 and -7.4 before expelling A.F.; these regulations mandate an informal
hearing, timely written notice of a formal hearing, and a summary of the testimonial evidence presented
at the formal hearing prior to terminating a student from school; 	here, A.F. was not provided an
informal hearing prior to his long-term suspension as required under N.J.A.C. 6A:16-7.3(a)2; the Board
failed to give petitioner written notice of the suspension within two school days of the beginning of the
suspension; the Board held a formal hearing more than 30 calendar days after the suspension had
begun, in violation of N.J.A.C. 6A:16-7.3(a)10iii; 	and the Board’s May 1, 2023 letter to petitioner,
notifying her of the Board’s decision to expel A.F., did not include a summary of testimonial evidence, in
violation of N.J.A.C. 6A:16-7.3(a)11ii. The ALJ concluded that due to the Board’s procedural violations,
the Board’s decision to expel A.F. was arbitrary, capricious and unreasonable and A.F.’s expulsion must
be expunged. Accordingly, petitioner’s motion for summary decision was granted.
Upon review, the Commissioner adopted the Initial Decision of the OAL as the final decision in this
matter, with modification. 	T he Commissioner found it unnecessary to reach a determination
regarding the language of the disciplinary hearing notice. Petitioner’s motion for summary decision
was granted.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader
and has been neither reviewed nor approved by the Commissioner.

433-24
OAL Dkt. No. 07049-23
Agency Dkt. No. 178-6/23
New Jersey Commissioner of Education
Final Decision
Y.C., on behalf of minor child, A.F.,
Petitioner,
v.
Board of Education of the City of Perth Amboy,
Middlesex County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL)
have been reviewed, as have the exceptions filed pursuant to N.J.A.C. 1:1-18.4 by the petitioner
and the Perth Amboy Board of Education (“Board”), and their replies thereto.
Petitioner’s 	child, 	A.F., 	was 	expelled 	by 	the 	Board 	following 	an 	incident 	on
February 27, 2023, wherein he pulled a fire alarm, causing the evacuation of Samuel E. Shull
Middle School (Shull).1 Petitioner challenges the Board’s expulsion for failure to adhere to the
procedural mandates under N.J.A.C. 6A:16-7.3 and N.J.A.C. 6A:16-7.4. 	Specifically, petitioner
alleges that A.F. was not provided an opportunity to share his version of events in an informal
hearing prior to his suspension; that the Board failed to provide petitioner with a written notice
1 On the same day, students at Perth Amboy’s high school staged a walk-out protest regarding the stabbing
of another Shull student earlier in the month.

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of suspension within two school days of the start of the suspension; that the Board did not
schedule a disciplinary hearing for A.F. within 30 days of the February 28, 2023 suspension; and
that the Board’s decision letter, dated May 1, 2023, lacks a summary of the testimonial and
documentary evidence upon which the Board relied in reaching its decision.
After the matter was transmitted to the OAL, the Board filed a motion to dismiss, arguing
that it permitted A.F. to re-enroll in the district, rendering petitioner’s claims moot. Petitioner
filed opposition and a cross-motion for summary decision, arguing that her claims were not moot
because justiciable issues remained, such as A.F.’s improper expulsion and the Board’s violation
of A.F.’s due process rights. Further, petitioner asserted that her petition is not moot given the
continued harm A.F. experiences due to the presence of an illegal expulsion on his disciplinary
record. 	Petitioner also contended that the Board’s decision to expel A.F. was arbitrary,
capricious, and unreasonable.
The ALJ denied the Board’s motion to dismiss, concluding that when all inferences are
drawn against the moving party and in favor of the opposing party, petitioner’s facts – if true –
could constitute a cause of action. 	In reaching her conclusion, the ALJ pointed to factual
allegations unrefuted by the Board, namely that A.F. was not provided an informal hearing prior
to his long-term suspension pursuant to N.J.A.C. 6A:16-7.3(a)(2), and that the Board failed to give
petitioner written notice about the suspension within two school days of the beginning of the
suspension. The ALJ also found that the Board held a formal hearing more than 30 calendar days
after the suspension had begun, in violation of N.J.A.C. 6A:16-7.3(a)(10)(iii). Lastly, the ALJ found
that the Board’s May 1, 2023 letter to petitioner, notifying her of the Board’s decision to expel

3
A.F., did not include a summary of the testimonial evidence, in violation of N.J.A.C. 6A:16-
7.3(a)(11)(ii).
Next, the ALJ granted petitioner’s motion for summary decision. The ALJ found several
procedural deficiencies in the Board’s suspension and expulsion of A.F. 	In addition to the
deficiencies noted above, the ALJ found that the Board improperly expelled A.F. even though he
had never served a long-term suspension for a prior incident as required by N.J.A.C. 6A:16-7.4(a).
Accordingly, the ALJ held that the expulsion must be expunged from A.F.’s student record;
additionally, his student record must be changed to show that A.F. was suspended due to the
February 27, 2023 incident and that petitioner transferred him to a charter school for the 2023-
2024 school year. The ALJ further concluded that the Board’s decision to expel A.F. was arbitrary,
capricious, and unreasonable for failing to consider options less drastic than discontinuing A.F.’s
educational program. 	The ALJ concluded that petitioner may enroll A.F. in the Perth Amboy
School District for the 2024-2025 school year. Finally, the ALJ held that since A.F. is not a special
education student, the requirement that a disciplinary hearing notice be provided in a language
that the parent understands does not apply to petitioner.
The Board takes exception to the ALJ’s finding that as a result of the two incidents that
occurred on February 27, 2023 — A.F. pulling the fire alarm and the walk-out protest by Perth
Amboy high school students — “there were hundreds of students on the streets, which impacted
the Shull administration’s deployment of staff.” The Board contends that A.F.’s false pulling of
the fire alarm during the protest brought hundreds more students to the street, not only
impacting the deployment of staff but also jeopardizing the safety of students and staff and
taking emergency teams away from monitoring safety during the walk-out at the high school.

4
The Board argues that it is from this context that they considered what disciplinary options to
impose, and it takes exception to the ALJ’s finding that the Board did not consider less extreme
disciplinary actions.
The Board also challenges the ALJ’s finding that it is unrefuted that A.F. was not given an
informal hearing prior to his suspension. Further, the Board takes exception to the ALJ’s finding
that most of the March 10, 2023 meeting between petitioner and the Shull principal and assistant
superintendent 	was 	conducted 	in 	English 	despite 	petitioner 	notifying 	the 	assistant
superintendent of her limited English. Lastly, the Board argues that the ALJ incorrectly concluded
that N.J.A.C. 6A:16-7.4 requires a student to have served a long-term suspension for a previous
incident before they can be expelled. The Board maintains that the plain meaning of
N.J.A.C. 6A:16-8.3 and N.J.S.A. 18A:37-2 should be applied, arguing that there is no requirement
that prior to being expelled, a student must have served a long-term suspension for a previous
infraction.
In response, petitioner contends that none of the Board’s exceptions to the ALJ’s factual
findings are material to the outcome of the instant matter and that the ALJ’s fact finding
sufficiently conveys the seriousness of A.F.’s offense. Petitioner also asserts that the ALJ correctly
deemed the Board’s failure to hold an informal suspension hearing as unrefuted since neither
certification filed by the Board’s assistant superintendent confirms that an informal suspension
hearing was held. Citing to case law, petitioner contends that the ALJ correctly determined that
a student must serve a long-term suspension for a previous incident in order to be expelled
pursuant to N.J.A.C. 6A:16-7.4.

5
Petitioner takes exception to the ALJ’s determination that since A.F. is not a special
education student, petitioner is not entitled to receive a disciplinary notice hearing notice in a
language she understands. 	Petitioner contends that it was unnecessary for the ALJ to have
reached this determination since neither party raised issues about the Board’s obligations to
translate and interpret disciplinary notices in their motions or briefs. In reply, the Board argues
that the issue of the language of the disciplinary hearing notification remains a disputed question
of fact and as such, this matter should be remanded to the OAL for a hearing.
Upon review, the Commissioner adopts the ALJ’s Initial Decision as the final decision in
this matter, with the following modification. While the Commissioner concurs with the ALJ that
the Board failed to adhere to the procedural requirements under N.J.A.C. 6A:16-7.3 and N.J.A.C.
6A:16-7.4 before expelling A.F., the Commissioner finds it unnecessary to reach a determination
regarding the language of a disciplinary hearing notice.2
It is well recognized that school districts have the authority to expel and suspend
students. N.J.S.A. 18A:37-2. That authority, however, is not unlimited, as the regulations provide
for sufficient safeguards to protect the student’s fundamental right to an education. 	Under
N.J.A.C. 6A:16-7.4(a)(1), “a district board of education may expel a general education student
from school, pursuant to N.J.S.A. 18A:37-2, only after the district board of education has provided
… [t]he procedural due process rights set forth at N.J.A.C. 6A:16-7.1(c)3 and 7.3 [and] subsequent
to a long-term suspension, pursuant to N.J.A.C. 6A:16-7.3 …”. A long-term suspension is defined
2 The Commissioner’s findings are sufficient to grant petitioner’s motion for summary decision, and the
Commissioner declines to address an issue that was not fully briefed by the parties when it is not necessary
to the outcome of this matter.

6
as the “removal of a student for more than 10 consecutive school days from the general
education program”. N.J.A.C. 6A:16-1.3.
Prior to suspending a student long-term, N.J.A.C. 6A:16-7.3(a)(2) requires the Board to
hold an informal hearing wherein the student can present his version of events. 	In addition,
N.J.A.C. 6A:16-7.3(a)(5) mandates that a parent be given written notice by the chief school
administrator or their designee within two school days of the beginning of the suspension. The
notice must state the specific charges, the facts upon which the charges are based, and the
student’s due process rights, and must include a notification that further engagement by the
student in conduct warranting expulsion shall amount to a knowing and voluntary waiver of the
student’s right to a free public education. A student is also entitled to a formal board hearing
that must take place no later than 30 calendar days after the day the student is suspended.
N.J.A.C. 6A:16-7.3(a)(10)(iii). Following the close of the formal hearing, the Board must provide
the student’s parents with a written statement regarding the Board’s decision. The statement
must include a “summary of the documentary or testimonial evidence” presented by the student
and the administration and “[f]actual findings relative to each charge and the [Board’s]
determination of each charge.” N.J.A.C. 6A:16-7.3(a)(11).
Here, the Board failed to provide A.F. with an informal hearing prior to the start of his
suspension. It is undisputed that the Board’s written suspension notice, dated March 14, 2023,
was provided to petitioner more than two school days after February 28, 2023, the first day of
A.F.’s suspension. It is also undisputed that the formal hearing was held on April 27, 2023, more
than 30 days after the commencement of A.F.’s suspension. 	Furthermore, the Board’s
May 1, 2023 letter, informing petitioner of the disposition of the formal hearing, did not include

7
a summary of documentary or testimonial evidence on which the Board relied or factual findings
relative to each charge. Instead, the letter lists the kinds of evidence the Board considered in
reaching its determination that A.F. violated the Board’s policy. Lastly, the Board expelled A.F.
despite him never having served a long-term suspension for a prior incident. Accordingly, the
Commissioner concurs with the ALJ that the Board violated A.F.’s due process rights by failing to
provide the procedural protections mandated by N.J.A.C. 6A:16-7.3 and N.J.A.C. 6A:16-7.4.
The Commissioner does not find the Board’s exceptions to be persuasive. 	The
Commissioner rejects the Board’s argument that N.J.A.C. 6A:16-7.4 does not require a student to
have served a long-term suspension for a previous incident in order to be expelled. 	The
Commissioner has previously found that, under N.J.A.C. 6A:16-7.5, expulsion can only take place
after a student has “engaged a second time in conduct warranting possible suspension or
expulsion, after having first served a duly imposed long-term suspension for an earlier infraction.”
M.R., v. Board of Trustees of the Hoboken Charter School, Commissioner Decision No. 89-10,
decided March 22, 2010. In this matter, it is undisputed that A.F. has never served a long-term
suspension for any other incident, thereby precluding the Board from expelling A.F.
In addition, the Board contends that the ALJ incorrectly found that it was unrefuted that
A.F. was not provided with an informal suspension hearing prior to being suspended. The Board
argues that it refuted this claim in its Answer wherein the Board denied any allegation that it
failed to comply with the applicable law. However, nothing in the record – including the Board’s
Certification of Assistant Superintendent Delvis Rodriguez – indicates that A.F. had an informal
hearing where he was afforded the opportunity to relay his version of events prior to his
suspension. The Board merely suggests that it had conversations with petitioner in March 2023

8
to discuss options moving forward. N.J.A.C. 6A:16-7.3(a)(2) mandates an informal hearing where
the student, not the parent, be given an opportunity to share his version of events before the
suspension begins; further, A.F.’s suspension began on February 28, 2023, whereas the Board’s
discussions with petitioner occurred in March 2023. Thus, the Commissioner concurs with the
ALJ that it is unrefuted that A.F. was not provided with an informal hearing prior to his suspension
on February 28, 2023.
The Commissioner is not persuaded by the Board’s argument that the ALJ erred in finding
that 1) due to A.F. pulling the fire alarm and the walk-out protests, “there were hundreds of
students on the streets, which impacted the Shull administration’s deployment of staff,” and 2)
that the Board did not consider less extreme disciplinary actions. The Board contends that the
pulling of the fire alarm jeopardized the safety of students and staff and took emergency and
administrative teams away from monitoring the walkout, and that it is from this context that the
Board considered the disciplinary options to implement. 	The Commissioner notes the
seriousness of A.F.’s actions as presented by the Board, but nonetheless agrees with petitioner
that this specific finding of fact is not material to the resolution of this matter. 	Further, the
seriousness of A.F. pulling the fire alarm does not justify the many procedural violations the
Board has committed in the instant matter. 	Regarding the second finding of fact, the record is
devoid of any indication that the Board considered other disciplinary options prior to expelling
A.F. The Commissioner therefore agrees with the ALJ’s conclusion that the Board’s decision to
expel A.F. was arbitrary, capricious, and unreasonable for failing to consider other options prior
to ending A.F.’s educational program.

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Accordingly, the Initial Decision, as modified herein, is adopted as the Final Decision in
this matter. The Board is ordered to correct A.F.’s records to remove references to the expulsion,
as detailed by the ALJ. 	Additionally, to the extent that it has not already permitted same, A.F.
shall be re-enrolled in the district.
IT IS SO ORDERED.3
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	November 21, 2024
Date of Mailing: 	November 22, 2024
3 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.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 07049-23
AGENCY DKT. NO. 178-6/23
Y.C. ON BEHALF OF MINOR CHILD A.F.,
Petitioner,
v.
BOARD OF EDUCATION OF THE CITY
OF PERTH AMBOY, MIDDLESEX COUNTY,
Respondent.
Meredith Kilburn, Esq., appearing for petitioner (Education Law Center,
attorneys)
Isabel Machado, Esq., appearing for respondent (Machado Law Group,
attorneys)
Record closed: June 14, 2024 Decided: August 27, 2024
BEFORE KIM C. BELIN, ALJ:

OAL DKT. NO. EDU 07049-23
2
STATEMENT OF THE CASE
The Perth Amboy Board of Education (respondent/Board) expelled A.F., the minor
son of Y.C., (petitioner) for pulling the school fire alarm. At issue is whether the Board
followed the procedural mandates in N.J.A.C. 6A:16-7.3 and -7.4 before expelling A.F.
These State regulations mandate an informal hearing, timely written notice of a formal
hearing, and a summary of the testimonial evidence presented at the formal hearing prior
to terminating a student from school. The respondent failed to provide these and, thus,
violated A.F.’s procedural due process rights.
PROCEDURAL HISTORY
By letter dated May 1, 2023, the Board notified the petitioner that A.F. was expelled
and would be on home instruction pending an alternative school placement. On June 29,
2023, the petitioner filed a Petition of Appeal. The respondent filed its Answer on July 19,
2023, and the matter was transmitted as a contested case to the Office of Administrative
Law (OAL), where it was filed on August 3, 2023. N.J.S.A. 52:14B-1 to -15; N.J.S.A.
52:14F-1 to -13.
After a series of unsuccessful settlement attempts, the respondent filed a motion
to dismiss dated April 19, 2024, asserting that the controversy was rendered moot
because the Board was allowing A.F. to re-enroll for the 2024-25 school year. Petitioner
opposed the motion to dismiss and filed a cross-motion for summary decision on May 6,
2024, asserting that she was entitled to prevail as a matter of law because the Board
violated A.F.’s due process rights under the school laws, and expelled him illegally.
Respondent filed a reply on May 28, 2024, and the petitioner filed a reply in opposition on
June 14, 2024.

OAL DKT. NO. EDU 07049-23
3
DISCUSSION AND FINDINGS OF FACT
The following facts are not in dispute and thus, I FIND:
A.F. is the minor son of the petitioner Y.C. Both A.F. and Y.C. reside within the
Board’s public school district boundaries. A.F. is a rising ninth grader. During the 2022-
23 school year, A.F. attended the Samuel E. Shull Middle School (Shull), and on February
27, 2023, A.F. pulled the fire alarm, which triggered an evacuation of the school. On the
same day, Perth Amboy high school students had a walk-out to protest the stabbing of
another Shull student earlier in February. As a result of these two incidents, there were
hundreds of students on the streets, which impacted the Shull administration’s
deployment of staff.
The respondent’s Student Code of Conduct listed false public alarm as a Level III
behavioral offense subject to expulsion. (Exhibit A, Rodrigez Certification.)
The petitioner was notified on the afternoon of February 27, 2023, that A.F. had to
go to the Perth Amboy Police Department for questioning. On February 28, 2023, the
petitioner contacted the respondent and was told that A.F. could not return to school until
the principal authorized A.F.’s return.
The petitioner met with Shull’s principal and the assistant superintendent on March
10, 2023. Most of this meeting was conducted in English although the petitioner had
notified the assistant superintendent of her limited English. However, the assistant
superintendent did tell the petitioner in Spanish that A.F. would never return to Perth
Amboy public schools. The respondent offered an out-of-district placement in lieu of a
Board disciplinary hearing. The petitioner was not given a written suspension notice
during this meeting and A.F. was not given an opportunity to tell his side of the story. The
petitioner refused to sign a form authorizing an out-of-district placement for A.F.

OAL DKT. NO. EDU 07049-23
4
On March 22, 2023, the petitioner visited the Board’s offices and was given a letter
dated March 14, 2023, which was the notice of suspension. (Exhibit B, Petitioner’s Motion
for Summary Decision (PMSD).) This letter did not include the facts on which the charges
were based or explain A.F.’s due process rights as required by N.J.A.C. 6A:16-7.3(a)5ii
and iii. Instead, the letter stated that by signing the letter and attached waiver form, the
petitioner was waiving the expulsion hearing. Id. Specifically, this letter stated:
As a summary of our meeting regarding this matter and in
lieu of an expulsion hearing, we have agreed to the
following:
• [A.F.] will continue to be homeschooled until such time
as the District can locate an alternative placement.
Instruction will be provided at home.
• [A.F.] will be strictly prohibited from entering school
premises for any reason, until notified otherwise, if so.
This prohibition will apply to all school premises,
athletic fields, and administrative buildings. In addition,
[A.F.] will not be able to attend any event hosted by the
Perth Amboy Public School, whether the event is held
on school property or elsewhere,
• On behalf of [A.F.] you agree to waive Board
disciplinary hearings as provided in N.J.S.A. Section
[sic] 18A:37-2, and N.J.A.C. Sections [sic] 6A:16-7.2,
7.3, 7.4 and 7 [sic].
• In the event [A.F.] fails to abide by the terms of this
agreement and/ or re-engages in conduct warranting
extended suspension or expulsion by virtue of the
Section [sic] 18A:37-2 of N.J.S.A., it will correspond to
a resignation on the part of [A.F.] as an informed and
voluntary way [sic] to his right to receive public free
education if the Board makes a decision to expel the
student pursuant to N.J.S.A. sections [sic] 18A:37-2
and N.J.A.C. 6A:16-7.5.
[Ibid.]

OAL DKT. NO. EDU 07049-23
5
The letter further gave the petitioner until March 20, 2023, to sign the attached waiver
form. The petitioner did not sign the letter or waiver form.
A Board employee attempted to hand-deliver a letter to the petitioner on April 21,
2023, however, the letter was in English, and the Board employee would not tell or explain
to the petitioner the contents of the letter. The petitioner refused to sign for the letter.
A formal Board hearing was held on April 27, 2023, in which the Board approved
the recommendation to expel A.F. and find an alternative educational program. Neither
the petitioner nor A.F. attended the hearing. The petitioner received a letter dated May
1, 2023, written in English, notifying the petitioner that the Board had considered A.F.’s
prior disciplinary record, and heard witness testimony along with other evidence. (Exhibit
C, PMSD.) Based upon this evidence, the Board concluded that A.F. had violated Board
policies No. 7610 and 5600 and, therefore, A.F. was expelled and would be on home
instruction pending an out-of-district placement. Home instruction did not start until March
28, 2023.
The formal hearing was held beyond the thirty-day limit required by State law.1
The notice of suspension was not provided to the petitioner within two school days of the
suspension as required by State law.2 There is no evidence that A.F. was provided an
opportunity to share his version of the events prior to the suspension.3 The home
instruction was not provided within the five-school day period as mandated by school
law.4
A.F.’s Behavior Detail Report for the 2022-23 school year shows the following
infractions and consequences:
• before/after school suspension for being out of school uniform;
1 N.J.A.C. 6A:16-7.3(a)10iii.
2 N.J.A.C. 6A:16-7.3(a)5.
3 N.J.A.C. 6A:16-7.3(a)2.
4 N.J.A.C. 6A:16-7.3(a)9i.

OAL DKT. NO. EDU 07049-23
6
• conference with administrator for refusal to put phone way during class after
multiple warnings;
• verbal warning for walking out of the gym without permission;
• three-day after school detention for cutting class; and
• one day out of school suspension for participating in a physical fight. (Exhibit A,
PMSD.)
A.F. did not attend the Perth Amboy School District for the 2023-24 school year,
or participate in the eighth-grade graduation, but was enrolled by the petitioner in the
Academy for Urban Leadership Charter School (Charter School). There were no reports
of behavioral infractions at the Charter School.
In a letter dated April 12, 2024, the respondent notified the petitioner that she could
enroll A.F. in the Perth Amboy schools for the 2024-25 school year. In addition, the
respondent provided A.F.’s eighth-grade graduation completion certificate. (Exhibit D,
PMSD.)
LEGAL DISCUSSION AND CONCLUSIONS
The legal question presented is whether A.F. should be returned to school and his
record expunged due to the Board’s procedural due process violations. In this regard,
the petitioner seeks an Order:
1. reinstating A.F. as a Perth Amboy student for as long as he is entitled to a
public education,
2. expunging the expulsion from A.F.’s record, and changing his record to
reflect that a suspension was imposed and that his parent transferred him
to a charter school for the 2023-24 school year,

OAL DKT. NO. EDU 07049-23
7
3. precluding the Board from imposing any further disciplinary actions against
A.F. related to the incident at issue, compensatory education, and attorneys’
fees.5
In addition, the petitioner seeks declaratory rulings that: (1) the respondent’s
conduct was illegal and violated A.F.’s rights to a free public education; and (2) the
disciplinary hearing notice to Y.C. was inadequate and notice of a disciplinary hearing
must be provided to parents in a language they understand.
Respondent’s Motion to Dismiss
A motion to dismiss is recognized in the Administrative Code at N.J.A.C. 6A:3-
1.5(g). The Commissioner of Education (Commissioner) may dismiss a petition on the
grounds that the petitioner has advanced no cause of action even if the petitioner’s factual
allegations are accepted as true or for lack of jurisdiction, failure to prosecute, or other
good reason. N.J.A.C. 6A:3-1.10. In assessing such a motion, the claims made by the
party who filed the petition must be deemed to be true and all reasonable inferences that
such allegations may support must be accepted. The standard utilized by the courts in
judging such a motion is traditionally quite liberal towards the non-moving party. Green
v. Morgan Props., 215 N.J. 431, 451 (2013).
Here, the respondent contends that the petition must be dismissed because A.F.
is now permitted to re-enroll as a student for the 2024-25 school year and thus the issue
is moot. The remaining issues regarding expunging his record of the disciplinary charges
are ancillary because it is undisputed that A.F. pulled the fire alarm and expulsion was a
known consequence for this infraction.
The petitioner, however, contends that the petition should not be dismissed
because two justiciable issues remain—namely, A.F.’s due process rights were violated
and he was improperly expelled. The petitioner contends that these issues are capable
5 The requests for compensatory education and attorneys’ fees were withdrawn.

OAL DKT. NO. EDU 07049-23
8
of repetition in the future and therefore are not moot. In addition, the petitioner asserts
that the respondent’s letter dated April 12, 2024, does not guarantee that the respondent
will not impose additional punishment on A.F. or that A.F. will be reinstated into the
general education population.
N.J.A.C. 6A:16-7.4 provides that a local board of education may expel a general
education student only after having provided the student with procedural due-process
rights as outlined in N.J.A.C. 6A:16-7.1(c)3 and -7.3, after a long-term suspension and an
appropriate educational program or service has been provided by the school district. The
procedures for a long-term suspension are outlined in N.J.A.C. 6A:16-7.3(a) 1-11 and
mandate that the school district must provide:
• a notice to the student of the charges prior to the student’s removal from school;
• an informal hearing prior to the suspension which affords the student an
opportunity to tell his/her side of the events;
• immediate notice to the student’s parents of the student’s removal from school;
• written notification to the parents by the principal or principal’s designee within two
school days of the start of the suspension stating the specific charges, the facts
upon which the charges are based, the student’s due process rights, and notice
that further engagement by the student in conduct warranting expulsion shall
amount to a knowing and voluntary waiver of the student’s right to a free public
education;
• a list of witnesses and their statements or affidavits, no later than five days prior
to the formal hearing;
• information on the right to secure counsel;

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• in- or out-of-school educational services within five days of the suspension;
• a formal hearing before the board of education that allows the student to confront
and cross- examine witnesses and present the student’s defense; and
• a written statement to the student’s parents regarding the board of education’s
decision within five school days after the close of the hearing.
The petitioner herein asserts, and the respondent does not refute, that A.F. was
not given an informal hearing prior to being suspended on February 28, 2023, pursuant
to N.J.A.C. 6A:16-7.3(a)2. It is also unrefuted that the respondent did not provide written
notification from the principal to the petitioner within two school days of the start of the
suspension with information about the basis for the suspension. The evidence shows
that the petitioner did not get a letter from the respondent until March 14, 2023, which
was eleven school days after the suspension. The formal hearing was held on April 27,
2023, which was more than thirty calendar days after the suspension which violates
N.J.A.C. 6A:16-7.3(a)10iii. Finally, the respondent’s notice to the petitioner containing
the respondent’s decision did not include a summary of the testimonial evidence, in
violation of N.J.A.C. 6A:16-7.3(a)11ii.
Accordingly, drawing all inferences against the moving party and in favor of the
opposing party, the petitioner’s facts, if true, may make out a cause of action. For these
reasons, I hereby ORDER that the respondent’s motion to dismiss is DENIED.
Petitioner’s Cross-motion for Summary Decision
A motion for summary decision may be granted if the papers and discovery
presented, as well as any affidavits which may have been filed with the application, show
that there is no genuine issue of material fact and that the moving party is entitled to
prevail as a matter of law. N.J.A.C. 1:1-12.5(b). If the motion is sufficiently supported,
the non-moving party in order to prevail must demonstrate by affidavit that there is a

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genuine issue of fact which can only be determined in an evidentiary proceeding. Ibid.
These provisions mirror the summary judgment language of R. 4:46-2 (c) of the New
Jersey Court Rules.
The motion judge must “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 factfinder to resolve the alleged disputed issue in favor of
the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
And even if the non-moving party comes forward with some evidence, this forum must
grant summary decision if the evidence is “so one-sided that [the moving party] must
prevail as a matter of law.” Id. at 536 (citation omitted).
In this case, I CONCLUDE that no genuine issue of material fact exists, and that
petitioner is entitled to prevail as a matter of law, for the reasons set forth below.
N.J.S.A. 18A:37-2 grants a local board of education authority to impose discipline,
including suspension and expulsion, upon any student who is willfully disobedient, and
N.J.S.A. 18A:37-5 allows a principal to suspend any student for good cause. However,
disciplined students retain extensive due process rights. Goss v. Lopez, 419 U.S. 565
(1975); N.J.A.C. 6A:16-7.3. Prior to expulsion, a student is entitled to an informal hearing
where the student can provide his or her version of the events, a formal board hearing
with an opportunity to confront and cross-examine witnesses and provide the student’s
own defense. N.J.A.C. 6A:16-7.3. In addition, regulations mandate that the parent must
be provided notice of a long-term suspension within two school days of the start of the
suspension. N.J.A.C. 6A:16-7.3(a)5. Here, the letter was not issued until eleven school
days after the start of the suspension. The formal board hearing must be held no later
than thirty calendar days following the suspension. N.J.A.C. 6A:16-7.3(a)10iii. After the
formal board hearing, the board must provide a written summary to the parent outlining
the documentary and testimonial evidence presented by the administration, and factual
findings for each charge. N.J.A.C. 6A:16-7.3(a)11ii – iv. None of this was provided to the
petitioner.

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Moreover, A.F. has not served a long-term suspension for a previous incident as
required by N.J.A.C. 6A:16-7.4(a). This regulation provides in relevant part:
A district board of education may expel a general education
student from school, pursuant to N.J.S.A. 18A:37-2, only after
the district board of education has provided the following:
1.The procedural due process rights set forth at
N.J.A.C. 6A:16-7.1(c)3 and 7.3, subsequent to a long-
term suspension, pursuant to N.J.A.C. 6A:16-7.3 . . . .
[Emphasis added.]
The respondent attempts to justify the due process violations by stating that the
petitioner failed to cooperate in scheduling the expulsion hearing. However, the relevant
regulation regarding holding the formal hearing is clear, and it is well established that a
regulation is subject to the same rules of construction as a statute and should be
construed according to the plain meaning of its language. Medford Convalescent &
Nursing Ctr. v. Division of Med. Assistance & Health Servs., 218 N.J. Super. 1, 5 (App.
Div. 1985). N.J.A.C. 6A:16-7.3(a)10iii states that the formal hearing before the board of
education “shall . . . [t]ake place no later than 30 calendar days following the day the
student is suspended from the general education program . . . .” This language is
mandatory, and, thus, the Board was duty bound to hold the hearing on or before March
30, 2023. When the petitioner did not respond by March 20, 2023, as instructed in the
respondent’s March 14, 2023 letter, the respondent should have scheduled the hearing
or documented an adjournment, along with efforts to reschedule the hearing.
It is undisputed that A.F. was suspended on February 28, 2023, and the expulsion
hearing was not held until April 27, 2023, which is fifty-eight calendar days from the initial
suspension. Failing to adhere to the thirty-day period contravened the regulation.
Accordingly, I CONCLUDE that drawing all inferences against the moving party and in
favor of the opposing party, there are no genuine issues of material fact concerning
whether the Board followed the procedural mandates outlined in N.J.A.C. 6A:16-7.3 and

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-7.4 before expelling A.F., and the petitioner is entitled summary decision. I further
CONCLUDE that due to the procedural violations, the expulsion must be expunged from
A.F.’s pupil records and changed to reflect that he was suspended as a result of an
incident occurring on February 27, 2023, and the petitioner transferred him to a charter
school for the 2023-24 school year.
In addition, the petitioner asserts that the Board’s decision to expel A.F. was
arbitrary, capricious, and unreasonable because the Board did not consider less extreme
disciplinary options. Petitioner relies upon Scher v. Bd. of Educ. of West Orange, Essex
County, 1968 S.L.D. 92, in which the Commissioner ruled that a hearing was required
before a student could be expelled as well as being evaluated by a mental health team.
Specifically, the Commissioner stated:
Termination of a pupil’s right to attend the public schools of a
district is a drastic and desperate remedy which should be
employed only when no other course is possible. It involves
a momentous decision which members of a board of
education, most of whom have had little specific training in
education, psychology, or medicine are called upon to make.
The board’s decision should be grounded, therefore, on
competent advice. Such advice can be obtained from its staff
of educators, from its school physician and school nurse, from
its psychologist, psychiatrist, and school social worker, from
its counsel, and from other appropriate sources. . . . It is
obvious that a board of education cannot wash its hands of a
problem by recourse to expulsion. . . . The Commissioner
urges boards of education, therefore, to recognize expulsion
as a negative and defeatist kind of last-ditch expedient
resorted to only after and based upon competent professional
evaluation and recommendation.
[Id. at 96-97.]
Here, there is no evidence that the Board considered any other less drastic options
than discontinuing A.F.’s educational program. For example, there was no referral to the
Intervention and Referral Services team, counseling, or professional evaluation of any
kind. Without question, A.F.’s decision to pull the fire alarm resulted in pandemonium for

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other students and staff and warranted discipline. However, it appears that the
respondent was merely “washing its hands of a problem” by failing to consider other
options. Accordingly, I CONCLUDE that the Board’s decision to expel A.F. was arbitrary,
capricious, and unreasonable.
I am not persuaded, however, that the respondent’s letter dated April 12, 2024,
which allows A.F. to re-enroll in the Perth Amboy School District for the 2024-25 school
year, allows the respondent to rescind the letter, reinstate A.F.’s expulsion, or place him
in an alternative education program, leaving A.F. unable to challenge the underlying
expulsion, as the petitioner contends. This is conjecture and is not supported by the
evidence. It is axiomatic that each local board of education has an affirmative duty not to
act in bad faith, to ensure that its discretionary decisions are rationally based and not
“induced by improper motives.” Kopera v. West Orange Bd. of Educ., 60 N.J. Super. 288,
296 (App. Div. 1960). If these duties are breached, the petitioner maintains her
continuous rights under N.J.A.C. 6A:3-1.3 and -1.4 to file a petition before the
Commissioner. Accordingly, I CONCLUDE the petitioner may enroll A.F. in the Perth
Amboy School District for the 2024-25 school year.
Declaratory Rulings
The petitioner seeks declaratory rulings that: (1) the respondent’s conduct violated
the petitioner’s rights under regulatory, statutory, and constitutional law; (2) the expulsion
was illegal; (3) the disciplinary hearing notice to Y.C. was inadequate, and notice of a
disciplinary hearing must be provided to parents in a language they understand. The
respondent objects, stating that the petition seeks consequential relief and, thus, a
request for a declaratory ruling is improper under the regulations. N.J.A.C. 6A:3-2.1
allows any interested person to file a petition with the Commissioner for a declaratory
ruling with respect to the rights, responsibilities, and status arising from any statute or rule
within the Commissioner’s jurisdiction. In addition, this regulation provides:

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A request for a declaratory ruling shall reflect adverse
positions on the statute or rule in question by the parties in
interest, may not seek consequential relief beyond a
declaration as to the meaning of the statute or rule, and may
not be based on underlying facts that are future, contingent,
uncertain, or disputed.
[N.J.A.C. 6A:3-2.1(a)1.]
The petitioner counters that she is not seeking declaratory relief under this
regulation, but rather is merely asking this tribunal to decide if, based on the facts alleged,
the Board violated these rights and responsibilities. Given the findings and conclusions
above, which grant petitioner’s motion for summary decision on the basis that the Board
failed to adhere to the procedural requirements of N.J.A.C. 6A:16-7.3 and -7.4, and that
the decision to expel A.F. was arbitrary, capricious, and unreasonable, I CONCLUDE that
it is unnecessary to reach this issue, with the exception of the petitioner’s request for a
declaratory ruling stating that notice for a disciplinary hearing must be provided to parents
in a language they understand. Such a requirement is only mandated for special
education students. See N.J.A.C. 6A:14-2.3(g) and -2.4. Accordingly, I CONCLUDE that
since A.F. is not a special education student, the requirement that disciplinary hearing
notice must be provided to parents in a language the parent understands does not extend
to the petitioner.6
ORDER
For the foregoing reasons, I hereby ORDER that the petitioner’s motion for
summary decision is GRANTED.
I hereby FILE this initial decision with the ACTING COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.
6 N.J.A.C. 6A:15-1.12 requires notice in the parent’s primary language when a student has been identified
as a multilingual learner eligible for a language instruction educational plan. This does not apply here.

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This recommended decision may be adopted, modified, or rejected by the ACTING
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. If the Acting 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 ACTING
COMMISSIONER OF THE DEPARTMENT OF EDUCATION. Exceptions may be filed
by email to ControversiesDisputesFilings@doe.nj.gov or by mail to Office of
Controversies and Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton,
New Jersey 08625-0500. A copy of any exceptions must be sent to the judge and to the
other parties.
August 27, 2024
DATE KIM C. BELIN, ALJ
Date Received at Agency:
Date Mailed to Parties:

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APPENDIX
EXHIBITS
For petitioner
• Response to respondent’s Motion to Dismiss and Cross-Motion for Summary
Decision with certification and exhibits, dated May 6, 2024
• Reply to respondent’s opposition to petitioner’s Cross-Motion for Summary
Decision with supplemental certification, dated June 14, 2024
For respondent
• Motion to Dismiss, dated April 19, 2024
• Reply to petitioner’s opposition to respondent’s Motion to Dismiss and in
opposition to the petitioner’s Cross-Motion for Summary Decision, dated May
28, 2024