Recently, the Appellate Division of Superior Court determined that a board member, who is the parent of a special education student in the district, could remain on the board despite filing a “10-day letter” notifying the district of the “concerns or intent to enroll their child in a nonpublic school” as required by N.J.A.C. 6A:14-2.10(c).

In D’Amico v. Kinnelon Board of Education, the court relied on the New Jersey Supreme Court’s earlier ruling in Board of Education of City of Sea Isle City v. Kennedy, 196 N.J. 1 (2008) in which that court determined that the filing of a due process petition was a violation of N.J.S.A. 18A:12-2, which required the removal of the board member from the board. In that case, the court announced that “[b]oard members who have handicapped children should not have to fear loss of their elected office as a condition of questioning, or if necessary, pursuing through the initiation of proceedings, the appropriateness of their child’s education.”

The New Jersey Supreme Court made clear that not “every due process request to resolve specific issues regarding a child’s classification or IEP should result in the automatic disqualification of a board member.”  The “Commissioner should examine the nature of the dispute and establish a more careful and fact-specific explanation of when a conflict over a child’s educational program becomes so substantial that removal from office is required.”

The court required the commissioner of education to examine “the claim in question to determine whether it portends the likelihood of protracted, and intractable, litigation between the parties.” On the other hand, if “case-specific examination” showed that a particular dispute “could be quickly and easily resolved between the parties,” then that conflict would be less likely to involve such substantial and deeply antagonistic interests as to require removal.

In applying the Kennedy principles to the D’Amico case, the Appellate Division said that a ten-day letter is a notice of “concern or intent” giving the district the opportunity to correct the child’s educational program before leaving the school.  The court also noted that the ten-day notice contains no demand for monetary reimbursement from the district, while the regulations make it clear that failure to submit the ten-day notice can lead to a complete or partial denial of reimbursement for tuition.  In contrast, a request for due process notifies the school district of the issues that need to be addressed by the district as well as the relief sought by the parents.

A ten-day letter is not required to contain a remedy. The language in a 10-day letter notifies the district that, since a resolution with regard to the child’s education plan has not been reached, the parents intend to seek reimbursement in the future. “A ten-day letter portends the mere possibility of future legal action; it does little to indicate the likelihood of protracted and intractable litigation between the parties,” according to the ruling.

The Appellate Division determined that the current dispute showed no “evidence of substantial and deeply antagonistic interests that portend the likelihood of protracted and intractable litigation between the parties” that would lead to a determination that removal of the board member was warranted for submitting the ten-day letter.  The court concluded that removal was not required under the facts of this case. If a due process request for tuition reimbursement was filed, then just like the court in Kennedy, “a line would be crossed requiring disqualification from the Board. Under the circumstances on this record, though, that line has not yet been reached.”

For further information about this case or any other matters, please contact the NJSBA Legal and Labor Relations Department at 609-278-5279, or your board attorney for specific legal advice.