Chess v. Bergenfield Bd. of Ed.

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Chess v. Bergenfield Bd. of Ed.
(Formerly known as P.H. v. Bergenfield Bd. of Ed.)

APRIL 2005

II
IN THIS ISSUE

Camden
Bd.of Ed. v. Alexander, et al.

Camden
Bd. of Ed. v. McGreevey et al.

P.H. and P.H. on behalf of M.C. v. Bd. of Ed. of the Borough of Bergenfield

Franklin Twp.
Bd. of Ed. v. Franklin Twp. Ed. Ass'n

Magnolo v. Washington Twp. Bd. of Ed.

O’Shea v. West Milford Bd. of Ed

Ramsey
Bd. of Ed. v. Ramsey Teachers Ass'n

In the Matter of Monmouth-Ocean Educational Services Commission, Rumson-Fair Haven Regional High School District, Stafford Twp. Bd. of Ed.

In the Matter of the Petition of New Jersey American Water Company, Inc., for an Increase in Rates for Water and Sewer Service and Other Tariff Modifications

SUPERIOR COURT APPELLATE DIVISION

Even if a board of education expels a student for breaking school rules, it has to provide that student with an alternative education until the age of 20. In a disappointing unreported decision for local boards of education, the Appellate Division refused to discuss the merits of a school board’s challenge to this principle. It found instead that the Bergenfield Board of Education’s appeal in Mark Chess v. Board of Education of the Borough of Bergenfield was moot because the expelled student had meanwhile reached the age of 20 (in July, 2004).
    The student’s expulsion by the Bergenfield board occurred after he brought five weapons to school (three boxcutters, a concealed razor blade and a Swiss army knife) and used one of the boxcutters to slash the back of another student’s jacket. He appealed the expulsion, and on July 16, 2001 the Commissioner affirmed the Board’s decision to expel and found the Board had no obligation to provide the student with an alternative education. The State Board reversed on July 2, 2002, concluding that from a legal and policy perspective, a student who is expelled from school must be provided with an alternative education program until he either graduates from high school or reaches his nineteenth birthday, whichever comes first. On remand from the Bergenfield Board’s Appellate Division appeal, the State Board on December 3, 2003, extended the student’s entitlement to an alternative education until his 20th birthday.
   The Appellate Division’s dismissal of the matter as moot leaves the State Board decision in place as the controlling law in this area.
    Although courts often elect to resolve moot issues, particularly on matters of substantial importance that are capable of repetition, yet evade review, the Appellate Division nonetheless declined to exercise its jurisdiction in this instance, leaving the solution to the Executive branch through the rulemaking process. The State Board is currently reviewing proposed regulations on student conduct, N.J.A.C. 6A:16, which would codify the State Board decision in P.H. and require school districts to provide an alternative education following a student expulsion until the student graduates from high school or reaches the age of 20. In reaching its decision the Appellate Division stated:
    “With this background, and this augury for effective administrative action, we stay our hand in this context of mootness, laden with constitutional overtones, unclear legislative mandates, and complex statewide implications.”
    NJSBA participated as amicus curiae in Chess v. Bergenfield, seeking to have the State Board decision reversed. NJSBA argued that the State Board’s decision was beyond its authority and inconsistent with the Legislative scheme for alternative education. The Legislature has required that boards provide alternative education for expulsions involving assaults with guns and other weapons but not for expulsions generally. NJSBA further argued that the Appellate Division should look for guidance to its earlier decision of Rotondo v. Carlstadt-East Rutherford Reg. H.S., 276 N.J. Super. 36 (App Div. 1994). In Rotondo, the Appellate Division invalidated a State Board regulation barring a board of education from appointing a teaching staff member without the affirmative recommendation of the chief school administrator. The regulation conflicted with the general statute regarding the appointment of staff members, which contained no requirement for the recommendation of the chief school administrator. NJSBA argued that in Chess, the absence of an alternative education provision in the general expulsion statute was analogous to the absence of a chief school administrator recommendation requirement in the general teaching staff member appointment statute in Rotondo.
    NJSBA also argued that alternative education following expulsion is not part of a legislatively defined thorough and efficient education in New Jersey. The Legislature has not seen fit to include a general alternative education requirement in statute. Nor has any mention of alternative education made its way into the school funding scheme under school funding law (CEIFA) either explicitly or as part of the efficiency standards promulgated through the Biennial Report on the Cost of Providing a Thorough and Efficient Education.