Nicholas Hernandez v. Highland Park Board of Education, Middlesex County, 9/15/26 (#368-26R)

368-26R
OAL Dkt. No. EDU 06220-26
Agency Dkt. No. 155-04-26
New Jersey Commissioner of Education
Decision
Nicholas Hernandez,
Petitioner,
v.
Highland Park Board of Education, Middlesex
County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4, and the reply thereto filed by
Highland Park Board of Education (Board), have been reviewed and considered.1
In this matter, petitioner alleges that the Board committed five violations of N.J.A.C.
6A:32-7.1 between September 2025 and March 2026 by failing to provide access to student
records within the mandatory 10-day window. 	He requests various forms of relief, including
production of unredacted surveillance footage and the investigation file from March 19, 2026,
regarding an incident during which a custodian gave his child and other students rubber gloves
while they were in the cafeteria; a formal censure against the Superintendent and Interim
Supervisor of Educational Services for administrative bad faith and improper use of law
enforcement to intimidate a parent; appointment of an independent monitor to oversee the
1 The Commissioner did not consider petitioner’s additional submissions because they are not permitted
by N.J.A.C. 1:1-18.4.

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district’s records and safety departments for no less than one calendar year; referral to the
Department of Education’s Office of Fiscal Accountability and Compliance (OFAC) for a full audit
of the district’s safety, custodial, and records management protocols; and sanctions against
respondent for the willful and bad-faith obstruction of petitioner’s parental rights.
The Board filed a motion to dismiss in lieu of answer, arguing that petitioner failed to
state a claim upon which relief can be granted. The Board contended that the petition sets forth
“general parental complaints” against the district which do not constitute a controversy or
dispute arising under school laws. The Board also emphasized that the Commissioner’s review
of final board actions does not include the power to investigate claims, and that petitioner is
essentially demanding an investigation and a policy audit. In addition, the Board contended that
petitioner’s request for production of documents and video pertaining to the March 19, 2026,
rubber gloves incident is moot because it does not exist. As for the other remedies sought by
petitioner, the Board contended the requests were misplaced and unsupported by the facts,
relevant law, or regulations.
Petitioner opposed the motion to dismiss, claiming that the Board’s argument relied upon
contested facts — i.e., that the requested records do not exist. He also argued that the Board
cannot rely upon a mootness argument when it failed to preserve evidence either due to an
inadvertent or automatic deletion of the requested video footage. He insisted that he is entitled
to discovery to determine how the footage was deleted. He added that he was only shown a
“stagnant image” from the hallway video footage that the Board admits existed before it was
deleted. Finally, he contended that the independent monitor, OFAC referral, and sanctions were
necessary and authorized in the interest of student safety and preservation of student records.

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The Administrative Law Judge (ALJ) granted the Board’s motion to dismiss upon
concluding that petitioner failed to state a claim upon which relief may be granted. 	The ALJ
concluded that the information sought by petitioner — the surveillance footage and an
investigative file regarding the rubber glove incident — were not mandated student records
under N.J.A.C. 6A:32-7.1 because they did not contain information relevant to the education of
the student. The ALJ further concluded that the petition of appeal does not include sufficient
facts to support allegations of administrative malfeasance and that, therefore, the remaining
remedies petitioner sought — including a censure, OFAC referral, and sanctions — were
unavailable to him.
In his exceptions, petitioner argues: (1) the ALJ made a factual error about the contents
of the petition and mischaracterized its scope; (2) the ALJ’s treatment of the litigation hold
violation (based on the erasure of the hallway video footage) is legally erroneous and internally
inconsistent; (3) the ALJ’s conclusions regarding the improper use of law enforcement directly
contradicts her own findings of fact; (4) the ALJ failed to consider whether leave to amend the
petition was appropriate; and (5) the ALJ’s narrow reading of the petition violated the Printing
Mart standard.
In response, the Board argues: (1) the ALJ accurately characterized the petition’s claims;
(2) petitioner’s alleged “litigation hold” does not create a cause of action under the school laws;
(3) the ALJ’s treatment of the law enforcement allegation is not internally inconsistent; (4)
petitioner never sought to amend the petition, and amendment would be futile; and (5) the ALJ
correctly applied the standard governing the Board’s motion to dismiss for failure to state a claim.

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Upon review, the Commissioner is constrained to remand this matter for further
proceedings. Petitions are subject to dismissal “on the grounds that the petitioner has advanced
no cause of action even if the petitioner’s factual allegations are accepted as true.” N.J.A.C. 6A:3-
1.10. This standard also appears in New Jersey Court Rule 4:6-2(e). See Jonathan Wadley v. N.J.
Dep’t of Educ., Office of Student Prot., OAL Dkt. No. EDU 09223-22, Initial Decision at 4-5 (Mar.
10, 2023), adopted, Commissioner Decision No. 110-23 (Apr. 11, 2023) (assessing N.J.A.C. 6A:3-
1.10 motions like Rule 4:6-2 motions seeking dismissal for failure to state a claim).
Motions to dismiss are rarely granted and “must be evaluated in light of the legal
sufficiency of the facts alleged” in the petition. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106
(App. Div. 2005) (quoting Donato v. Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005)). 	If
information beyond the facts asserted in petitioner’s pleadings is considered by the tribunal —
including respondent’s competing version of facts as set forth in certifications — the granting of
a motion to dismiss is not appropriate. 	See Donato, 374 N.J. Super. at 483 (explaining that if
“matters outside the pleadings are presented to and not excluded by the court, the motion [to
dismiss] shall be treated as one for summary judgment . . . and all parties shall be given
reasonable opportunity to present all material pertinent to such a motion”) (quoting N.J. Ct R.
4:6-2).
A “student record” is “information related to an individual student gathered within or
outside the school district and maintained within the school district, regardless of the physical
form in which it is maintained.” N.J.A.C. 6A:32-2.1. The regulatory scheme further provides that
parents may request access to student records. N.J.A.C. 6A:32-7.5(e)(1). If the school district
disagrees with the request, the chief school administrator or designee shall meet with the parent

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to resolve the issues set forth in the request. 	N.J.A.C. 6A:32-7.7(b)(1). 	If the matter is not
resolved, the parent has 10 school days to appeal the school district’s decision to the district
board of education, and the board shall render a decision within 20 school days. N.J.A.C. 6A:32-
7.7(b)(2), (3). If the board seeks to deny a request, then the reasons for the denial should be
explained in the board’s written decision. 	The board’s final decision may be appealed to the
Commissioner pursuant to N.J.S.A. 18A:6-9 and N.J.A.C. 6A:3. See A.M., on behalf of minor child,
N.M. v. State-Operated School District of the City of Camden, OAL Dkt. No. EDU 08522023, Initial
Decision at 8-9 (Mar. 27, 2024) (explaining that student records claims must be raised in
accordance with the procedures set forth in N.J.A.C. 6A:32-7.7), adopted, Commissioner Decision
No. 174-24 (Apr. 29, 2024); N.J.A.C. 6A:3-1.3(i) (explaining that a petitioner may appeal a “notice
of a final order, ruling, or other action by the district board of education”).
Upon careful review of the record, the Commissioner is unable to ascertain whether
petitioner appealed his denial of access claims to the Board as required by N.J.A.C. 6A:32-7.7.
Moreover, the record does not contain a final ruling from the Board for the Commissioner to
review. 	Accordingly, the Initial Decision is rejected, the motion to dismiss is denied, and the
matter is remanded for further proceedings to determine at the outset whether petitioner
appealed his denial of access claims to the Board as required by N.J.A.C. 6A:32-7.7, and whether
the Board issued a decision within 20 days in accordance with N.J.A.C. 6A:32-7.7.
IT IS SO ORDERED.
COMMISSIONER OF EDUCATION
Date of Decision: 	September 15, 2026
Date of Mailing: 	September 15, 2026

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 06220-26
AGENCY DKT. NO. 155-04-26
NICHOLAS HERNANDEZ,
Petitioner,
v.
HIGHLAND PARK BOARD OF EDUCATION,
MIDDLESEX COUNTY,
Respondent.
_____________________________________
Nicholas Hernandez, petitioner, pro se
Jordan Lambdin, Esq., for respondent (Busch Law Group, LLC, attorneys)
Record Closed: May 19, 2026 	Decided: June 26, 2026
BEFORE BINDI MERCHANT, ALJ:
STATEMENT OF THE CASE
Petitioner Nicholas Hernandez (“Hernandez”) alleges that respondent Highland
Park Board of Education (“Board”) violated the school laws governing student records,
N.J.A.C. 6A:32-7.1 to -7.8, by failing to maintain or provide him with camera footage and
investigation materials of an incident in which a janitor gave his daughter a rubber glove

OAL DKT. NO. EDU 06220-26
2
at school. Must the case be dismissed for failure to state a claim upon which relief may
be granted? 	Yes, since N.J.A.C. 6A:32-7.3(b) identifies a list of student records the
district is required to maintain, and the materials sought are not such records.
PROCEDURAL HISTORY
On April 10, 2026, Hernandez filed a petition of appeal and petition for emergent
relief with the Commissioner of Education. 	According to Hernandez, his appeal arises
under “N.J.S.A. 18A:6-9, N.J.A.C. 6A:3-1.3, and N.J.A.C. 6A:32-7.1.” On April 20, 2026,
the Commissioner transmitted Hernandez’s petitions to the Office of Administrative Law
(“OAL”) under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, and the act
establishing the OAL, N.J.S.A. 52:14F-1 to -23.
On April 27, 2026, Hernandez’s emergent relief application, by which he sought
“to prevent the spoilation of evidence” of the rubber glove incident, was heard, and on
April 28, 2026, the application was denied.
On April 30, 2026, the Board filed a motion to dismiss in lieu of an answer, arguing
that Hernandez failed to state a claim upon which relief can be granted. Hernandez filed
an opposition brief that same day. On May 7, 2026, the Board filed a reply to Hernandez’s
opposition brief. 	Hernandez filed a response the same day. 	On May 19, 2026, I heard
oral arguments on the motion to dismiss and closed the record.
On May 29, 2026, the Commissioner of Education adopted the emergent relief
order.
FINDINGS OF FACT
For purposes of the Board’s motion to dismiss, the facts alleged by Hernandez in
his April 10, 2026, petition of appeal are deemed admitted; therefore, I FIND the following
allegations on which Hernandez bases his claims for relief in his petition of appeal as
FACT:

OAL DKT. NO. EDU 06220-26
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At all relevant times, Hernandez’s daughter attended the Board’s Irving Primary
School.
On March 19, 2026, a custodian employed by respondent distributed rubber
gloves to petitioner’s child.
On March 22, 2026, petitioner e-mailed the principal of Irving Primary School, Ms.
Megan McNally, and Highland Park Superintendent, Dr. Kristina Susca, a request to
access all educational records and to meet regarding the March 19, 2026, incident.
On March 23, 2026, Ms. McNally met with petitioner.
On March 26, 2026, Ms. McNally followed up on her meeting with petitioner and
indicated that the March 19, 2026, incident involved a custodian, during the course of his
duties, in the cafeteria, providing several students with rubber gloves, from a box he
brought in, after the students asked if they could have them. 	Petitioner’s daughter was
among those students, and no harm was experienced by any student who received the
rubber gloves. 	Shortly thereafter, Ms. McNally asked the custodian to refrain from
providing rubber gloves to students in the future. 	Ms. McNally also updated petitioner
with an e-mail stating that the matter was resolved with the custodian. 	Petitioner
responded to Ms. McNally and Dr. Susca with several follow-up questions.
On March 27, 2026, Dr. Susca responded to petitioner stating that a thorough
review of the situation was completed, and that the matter was fully addressed and there
was no further information to provide.
On April 6, 2026, petitioner requested a litigation hold on all records, data, and
communications related to this matter.
On April 7, 2026, petitioner sent another e-mail regarding preservation steps.

OAL DKT. NO. EDU 06220-26
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On April 8, 2026, petitioner requested from the respondent access to inspect the
March 19, 2026, video surveillance of the Irving Primary School cafeteria under the
statutory 10-day window. Additionally, petitioner confirmed his arrival at the office at 9:00
a.m. on April 9, 2026. The school secretary coordinated with the main office to facilitate
his review of the video recordings. 	While the Irving Primary School did not have video
cameras located within the cafeteria, petitioner was invited to observe a recording of video
surveillance capturing the “ingress and egress areas” of the cafeteria.
On April 9, 2026, petitioner met with Angelo Odato, Highland Park IT Technician,
to review the video recordings. Petitioner agreed not to record the meeting. As Mr. Odato
showed petitioner the best view of the hallway outside of the cafeteria, petitioner became
upset. 	The petitioner requested to view the physical cameras outside of the cafeteria.
While petitioner attempted to walk through the school, he was stopped and informed he
was not permitted to walk through the school. The parties returned back to the conference
room to resume watching the video recordings. Petitioner requested the whereabouts of
the principal and was advised that she would not be able to meet with him. 	Petitioner
became upset again after he was told that he had viewed all the available video
surveillance. The meeting ended and petitioner was asked to leave the school voluntarily,
otherwise he would be escorted out by police. The meeting lasted approximately twenty-
five (25) to thirty (30) minutes.
At some point, within the ordinary course of the district’s video retention system,
the video recording of the ingress and egress areas of the school cafeteria at Irving
Primary School were erased. 	The data retention program installed can retain only a
certain amount of data, therefore, when an appropriate data threshold is met, the previous
data is erased to preserve more recent video surveillance.
For relief, Hernandez seeks the production of “all surveillance footage from March
19, 2026,” and any communications or notes related to the rubber glove incident. 	He
asks the Commissioner of Education to censure school officials for “administrative bad
faith and the improper use of law enforcement to intimidate a parent,” to appoint an
independent monitor to oversee the Board’s operations, and to refer the district to the
Office of Fiscal Accountability and Compliance for an audit of record management

OAL DKT. NO. EDU 06220-26
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procedures. Finally, Hernandez requests that the Board be sanctioned “for the willful and
bad-faith obstruction of [his] parental rights.”
CONCLUSIONS OF LAW
The procedural rules governing petitions of appeal before the Commissioner
permit a respondent to file a motion to dismiss in lieu of an answer “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:3-1.5(g); N.J.A.C. 6A:3-1.10. 	Such a motion is assessed under the same
standards used by the courts in applying R. 4:6-2, the court rule allowing for motions to
dismiss.
Under these standards, if the basis for a motion to dismiss is that the petition has
advanced no cause of action, or failed to state a claim upon which relief may be granted,
“the test for determining the adequacy of [the] pleading [is] whether a cause of action is
‘suggested’ by the facts,” such that the “inquiry is limited to examining the legal sufficiency
of the facts alleged on the face of the complaint.” Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 746 (1989) (citing R. 4:6-2(e); Velantzas v. Colgate-Palmolive Co.,
109 N.J. 189, 192 (1988); Rieder v. Dep’t of Transp., 221 N.J. Super. 547, 552 (App. Div.
1987).
Importantly, for purposes of the motion, it does not matter whether a petitioner can
ultimately “prove the allegation contained in the complaint” because “all facts alleged in
the complaint and the legitimate inferences drawn therefrom are deemed admitted.” Ibid.
(citing Somers Constr. Co. v. S. Gloucester Cnty. Reg’l High Sch. Dist. Bd. of Educ., 198
F. Supp. 732, 734 (D.N.J. 1961)); Smith v. City of Newark, 136 N.J. Super. 107, 112 (App.
Div. 1975) (citing Heavner v. Uniroyal, Inc., 63 N.J. 130, 133 (1973); J.H. Becker, Inc. v.
Marlboro Twp., 82 N.J. Super. 519, 524 (App. Div. 1964). While “[a] complaint should not
be dismissed . . . where a cause of action is suggested by the facts,” “a dismissal is
mandated where the factual allegations are palpably insufficient to support a claim upon
which relief can be granted.” Rieder, 221 N.J. Super. at 552.

OAL DKT. NO. EDU 06220-26
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For the following reasons, Hernandez has failed to state a claim upon which relief
may be granted by the Commissioner under the student record laws or otherwise.
The crux of Hernandez’s petition of appeal is that the Board violated the school
laws governing student records, N.J.A.C. 6A:32-7.1 to -7.8, in responding to his requests
for information regarding the rubber glove incident. 	The problem with his claim that the
Board violated these regulations, by denying him access to security camera footage and
an investigative file regarding the rubber glove incident, is that these materials are not
“student records.” N.J.A.C. 6A:32-7.1(b) mandates that each school district “compile and
maintain student records and regulate access in accordance with the Family Educational
Rights and Privacy Act . . . .” 	Ibid. 	The records “shall contain only information that is
relevant to the education of the student . . . .” 	N.J.A.C. 6A:32-7.1(c); see also N.J.A.C.
6A:32-7.3(b) (providing a list of mandated student records). Hernandez alleges that the
school district failed to maintain student records, but security camera footage is not
relevant to the education of the student and is not among the records required to be
maintained under N.J.A.C. 6A:32-7.3. 	Therefore, Hernandez has not advanced a valid
claim that the Board must provide camera footage or other non-student record materials,
simply because he has not articulated a basis under the law for such an entitlement. Put
another way, the petition of appeal does not explain an “unlawful suppression of
mandatory student records” because it never mentions mandatory records described in
N.J.A.C. 6A:32-7.3. 	Compare N.J.A.C. 6A:16-7.7 (requiring school district to provide
“information . . . in writing to the parents or guardians of students who are party to a
harassment, intimidation, or bullying investigation.”).
Second, and even assuming the Commissioner has jurisdiction over Hernandez’s
claim of “administrative malfeasance,” the petition of appeal does not include sufficient
facts to support any such allegations. For a claim to exist, “the essential facts supporting
[petitioner’s] cause of action must be presented . . . ; conclusory allegations are
insufficient in that regard.” Scheidt v. DRS Techs., Inc., 424 N.J. Super. 188, 193 (App.
Div. 2012). Here, Hernandez only provides conclusory remarks about a school district’s
administration, namely that a failure to preserve camera footage, which is not required to
be preserved as “student records,” somehow constitutes a failure to maintain student
records. 	Since no student records are identified in the petition, it is also conclusory to

OAL DKT. NO. EDU 06220-26
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suggest that school officials engaged in malfeasance for failing to allow Hernandez to
inspect his child’s records when they ultimately restricted access to the camera footage.
Hernandez has also provided insufficient facts or a legal basis to “censure” the Board for
“the improper use of law enforcement to intimidate a parent.”
Finally, Hernandez’s factual allegations are palpably insufficient to support a claim
to appoint an “independent monitor” to oversee the Board’s operations, to refer the district
to the Office of Fiscal Accountability and Compliance for an audit of record management
procedures, or to sanction the Board “for the willful and bad-faith obstruction of [his]
parental rights.”
For the reasons stated, I CONCLUDE that Hernandez has failed to state a claim
upon which relief can be granted.
ORDER
Given my findings of fact and conclusions of law, I ORDER that the Board’s motion
to dismiss is GRANTED and that this case is DISMISSED.
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.

OAL DKT. NO. EDU 06220-26
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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. 	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.
June 26, 2026
DATE 	BINDI MERCHANT, ALJ
Date Received at Agency: 	June 26, 2026_____________________
Date Mailed to Parties:
ke

OAL DKT. NO. EDU 06220-26
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APPENDIX
For Petitioner:
Petitioner’s Opposition to Respondent’s Motion to Dismiss dated April 30, 2026.
Petitioner’s Reply to Respondent’s May 7, 2026, Reply dated May 7, 2026.
For Respondent:
Respondent’s Motion to Dismiss in Lieu of an Answer dated April 30, 2026.
Respondent’s Reply to Petitioner’s April 30, 2026, Opposition dated May 7, 2026.