In the last issue of School Leader, we reviewed several recent legal decisions involving school personnel. In this segment, we look at decisions that focus on bullying, special education, ethics and public records.

Harrassment, Intimidation and Bullying

The first decisions issued by the Commissioner of Education reviewing board of education harassment, intimidation and bullying (HIB) determinations were released in 2013.

In reviewing the decisions, it is important to consider the standard used by the commissioner.

Board of education actions are reviewed under an “arbitrary and capricious” standard; board actions are given great deference. When the education commissioner upholds an action of a board of education, he is not necessarily agreeing with the board’s action, but is stating that the board had a rational basis for its decision and did not act in an arbitrary and capricious manner.

In the HIB context, when the commissioner upholds a board determination on whether an action did or did not constitute HIB, observers should take care not to read too much into the determination. On those cases where the HIB determination is a factual close call, another board of education could review a similar set of facts, reach a different result and still have its determination upheld.

As with all legal decisions, board members should consult with their board attorneys as to the applicability of these decisions to their local school district. Every case is different and the slightest difference in fact can change the legal outcome.

During 2013, School Leader magazine ran three articles updating readers on decisions dealing with the Anti-Bullying Bill of Rights Act implementation. The articles appeared in the January/February 2013, the May/June 2013, and the July/August 2013 issues, and are available online at the NJSBA website at www.njsba.org/school-leader.

Several cases were summarized in those articles, including:

  • In J.M.C. o/b/o A.C. v. Board of Education of the Township of East Brunswick;
  • In W.C.L. and A.L. o/b/o L.L. v. Board of Education of the Borough of Tenafly;
  • In L.B.T. o/b/o K.T. v. Board of Education of the Freehold Regional School District;
  • In J.A.H o/b/o C.H. v. Board of Education of the Township of Pittsgrove

The following cases have been decided since we last wrote about the topic:

In E.G.M. o/b/o J.M. v. Board of Education of the Township of Mahwah, the commissioner determined that a parents’ petition of appeal of a board of education’s determination that an incident involving their daughter, a kindergarten student, did not constitute HIB, was not filed in a timely manner. The parent was notified by letter of the board’s decision on July 5, 2012, but did not file petition until January 8, 2013, well outside the 90-day limitation period.

In R.G.B. o/b/o E.B. v. Board of Education of the Village of Ridgewood, the commissioner found that the board of education’s determination that a student’s conduct constituted an incidence of HIB and the consequence imposed for such action was not arbitrary, capricious or unreasonable. The seventh grade student insulted and demeaned a classmate by calling her names including “fat” and/or “fat ass,” or “a horse.” The comments pertained to the student’s appearance and body type, were verbal acts motivated by distinguishing characteristics, were hurtful and upsetting and substantially interfered with the rights of another student. The bullying student was given two after-school detentions, consistent with the student’s age and the fact that this was his first offense. The actions of school personnel were consistent with the letter and spirit of the law.

In G.A. o/b/o K.A. v. Board of Education of the Township of Mansfield, a sixth-grade student was one of several students who called another student on the school bus names, including “faggot,” and suggested that the student engaged in sexual aggression. The comments pertained to the student’s gender and sexual orientation, were motivated by distinguishing characteristics, were hurtful and unkind, and substantially interfered with the rights of another student. The bullying student was assigned to lunch and recess detention, consistent with his age and the fact that this was his first offense. School personnel promptly responded to the HIB complaint and handled the process consistent with the law. The commissioner decided that the board’s determination that the conduct constituted an incidence of HIB and the consequence imposed for such action was not arbitrary, capricious or unreasonable.

In T.R. and T.R. o/b/o E.R. v. Board of Education of the Bridgewater-Raritan Regional School District, the commissioner rejected the administrative law judge’s (ALJ) determination that the parents’ appeal of the board’s decision was time-barred. The board had concluded that conduct directed toward the parents’ daughter, E.R. by another student, did not constitute HIB.

The commissioner determined that the triggering event for the 90-day filing deadline arose on August 31, 2012 when parents received the board’s letter denying their appeal of the HIB determination. The commissioner rejected the ALJ’s finding that the 90-day period began to run on August 28, 2012, the date of the meeting when the board voted on the HIB determination. The matter was remanded to the Office of Administrative Law (OAL) for a hearing on the merits.

In K.T o/b/o K.H. and T.D. v. Board of Education of the Township of Deerfield, the commissioner rejected the ALJ determination that the board of education exercised reasonable managerial discretion and met its burden of proof in determining that a kindergarten teacher did not commit an act of HIB. The teacher forced an African-American kindergarten student to eat a bagel, which had been retrieved from the trash can, albeit still enclosed in plastic, in front of the other students in the class.The fact that an independent investigation by the Department of Children and Families, Institutional Abuse Investigation Unit (IAIU) found no evidence of neglect or abuse did not settle the issue. The ALJ failed to apply the appropriate standard of review to the board’s motion for summary decision, applying a “default” standard of review, whereby the unopposed motion for summary decision was automatically granted. The completion of an internal HIB investigation is not discretionary. All alleged acts of HIB require an internal investigation. The matter was remanded to the OAL.

HIB in Special Education

Several special education decisions have been issued since the implementation of the Anti-Bullying Bill of Rights Act that have involved the issue of bullying. These special education decisions are due process decisions that have been decided by an ALJ and have involved determinations of eligibility for special education services and/or development or implementation of a student’s IEP, or individualized education program.

The most significant case of 2013 in this area was F.F. and L.F. o/b/o N.F. v. Matawan-Aberdeen Board of Education andMatawan-Aberdeen Board of Education v. F.F. and L.F. o/b/o N.F., which was addressed in the May/June 2013 issue of School Leader. In that case, the ALJ determined that the student’s program and placement, proposed by the board through the current IEP, provided the student with a meaningful educational benefit in the least restrictive environment, providing a free appropriate public education (FAPE). The parent’s request for home instruction through online courses was denied. The eleventh-grade student, who had been bullied in middle school, had been on home instruction since the eighth-grade, due to anxiety associated with a fear of bullying. Key to the decision was the fact that the current school environment included a new superintendent, deputy superintendent, and special education director, and that the district had implemented a new comprehensive HIB policy under the Anti-Bullying Bill of Rights Act.

HIB by Teachers

While teachers may not be considered victims under the Anti-Bullying Bill of Rights Act, they can be considered to be bullies and disciplinary action may occur, up to and including tenure charges.

In two cases, In the Matter of the Tenure Hearing of Steven E. Roth, and In the Matter of the Tenure Hearing of Jose Da Costa, it was decided that teachers would be dismissed from tenured employment after they were involved in harassing or bullying students. Both cases were described in the May/June 2013 issue of School Leader.

In a more recent case, In the Matter of the Tenure Hearing of Alan Carr, a teacher, supervisor of health and physical education and athletic director was recommended by the ALJ to be fired. The school district alleged that the employee engaged in conduct unbecoming, in an incident involving the placing of a bag of dog feces on the automobile of his former wife, a school district employee. In doing so, the district alleged he violated the school district’s HIB policies. The matter was not within the contemplation of the school district’s HIB policy or the HIB statute. Only students can be victims of HIB under the Anti-Bullying Bill of Rights Act. The commissioner affirmed the ALJ finding of conduct unbecoming of a teacher, but found the recommended penalty of dismissal to be unduly harsh, given all circumstances. The commissioner ordered forfeiture of 120 days’ pay, an additional suspension for six months without pay and forfeiture of one future salary increment.

Special Education

There was a flurry of litigation in 2013 over the question of whether a school board could centralize its special education classes.

In J.T. v. Dumont Pub. Schools, a parent challenged the practice of the Dumont School District to provide its self-contained and in-class resource (ICR) kindergarten special education classes in only one of the four district grade schools, per school year. The district provides busing for students who attend the ICR kindergarten class outside of their immediate neighborhood school, while students attending neighborhood schools walk or are driven to school. The district’s practice was prompted by a belief that centralization of special education classes is educationally appropriate, lawful, economical and administratively convenient.

The parent alleged that the district’s centralization policy violated federal disability laws as well as the New Jersey Law Against Discrimination (NJLAD) by failing to accommodate her child, A.T., in his neighborhood school without the district having meaningfully explored that option and without proof that centralization provided an economic or administrative benefit to the district. She sued the district – first in federal court and later in state court – on behalf of her child and other children in similar situations.

In its March 2012 decision, the federal district court dismissed her claims primarily on procedural grounds, also finding that the parent failed to establish the concrete injury necessary for standing under the Individuals with Disability Education Act (IDEA) or Section 504 of the Rehabilitation Act. The federal court also dismissed the state NJLAD claim on jurisdictional grounds. That decision was affirmed by the Third Circuit Court of Appeals in an April 2013 ruling.

Undaunted, the parent pursued the state claim by filing a new proceeding in the Chancery Division of the state Superior Court. In the state court ruling, Presiding Judge Robert P. Contillo identified the relevant section of the NJLAD’s requirement to accommodate a disability, and found that the district’s actions did not deprive the student of “the opportunity … to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation… without discrimination because of disability.” The judge determined that the parent failed to establish that her child was deprived of any special education programs, activities and benefits to which he was entitled as a result of his disability. While recognizing that federal education disability laws and state regulations contain a preference for educating children with disabilities in their neighborhood schools, the judge determined that the district’s actions comported with the requirements that A.T. attend the closer school “if possible,” and met all the student’s needs under his IEP.

The chancery court ruling noted that “…the law does not mandate that all special education services be made available at every location where any general education services are made available. Centralization is lawful under the IDEA and the preference for neighborhood schooling is but one factor among many – including expense and ease of administration ….” This matter is currently on appeal to the Appellate Division of the state Superior Court.

In another unrelated matter, J.T. v. Newark Bd. of Educ., coincidentally brought by a different plaintiff also named “J.T.,” the district court determined that the IDEA did not require the district to create a special program at the school closest to the sixth grader’s home as opposed to having the child attend another district school. On appeal, the federal District Court upheld that conclusion. Noting that courts in New Jersey as well as in other jurisdictions have addressed similar issues, and that proximity to the student’s home is only one factor in determining a student placement, the court cited numerous rulings in concluding that there is no right to a neighborhood school assignment under the IDEA.

Board of Education of Mine Hill v. Board of Education of Dover represents another significant case in the area of special education. Here, the education commissioner clarified the choice and sending districts’ responsibility to pay for the private school placement of a special education student who lives in one district but who has been accepted as a “choice student” in another district.

After a student, “M.G.,” was accepted as a choice student in Mine Hill, she was classified as being eligible for special education services. When her parents and Mine Hill could not agree on her the appropriate educational plan, the parents filed a petition against Mine Hill. Dover, the district of residence, intervened in the case, but the ALJ ruled in May of 2011 that Dover was not the party responsible for any out-of-district private or residential placement. The judge concluded that students accepted into a choice school were to be treated for fiscal purposes as residents of the choice district since the choice school received state educational aid for the choice students.

Mine Hill and M.G.’s parents agreed upon an educational plan. In 2012 Mine Hill placed the student out-of-district and filed a new petition against Dover, reasserting that Dover is responsible for the costs of M.G.’s out-of-district special education services. Although the ALJ would have dismissed this case because he had already addressed the issue in the earlier proceeding, the commissioner noted that the earlier order had never been finalized, and agreed to address the substantive issue at stake in the case. The commissioner noted that the state education regulation had been amended in 2011 after the earlier proceeding in order to clarify the financial responsibilities of a choice and sending district for students who require a private day or residential school.

Applying the newly revised regulation, the commissioner held that it is in fact Dover, the sending district, that has fiscal responsibility for a student in this situation. The choice district is required to contribute any state aid that it receives for such a student, with the sending district being responsible for the balance. The Dover Board of Education has filed an appeal to the Appellate Division of the State Superior Court.

Ethics and Conflict of Interest The School Ethics Commission (SEC) issued several recent advisory opinions touching a board member’s permitted involvement in certain personnel matters.

In Ethics Advisory Opinion A20-12, the SEC provided advice to a board member whose husband and brother taught in the district. The board member explained that she had voluntarily recused herself from participation in any closed session discussions and performance evaluations of the assistant superintendent or the superintendent because she recognized that to do so would violate the School Ethics Act.

She asked the SEC whether, having recused herself, she would be permitted to read the executive session meeting minutes of those discussions in order to understand the decisions that have been made in these closed executive sessions. The SEC advised the board member that she has only the same rights to review the executive session meeting minutes as any member of the public does and no more. Therefore, she would be permitted to review those executive session minutes only when they are available to the public, when the reason for confidentiality no longer exists. The SEC also cautioned that should a board member share the executive minutes with her, that member would be in violation of the confidentiality provisions of the School Ethics Act.

The board member also questioned her attorney’s advice that she could not participate in executive meeting discussions about the positions of the vice principals, who administer the school in which her brother works. The SEC agreed with her counsel and advised that a board member should not evaluate or review the positions of the supervisors of a relative such as a sibling.The SEC noted that board members must not act in situations where they have a personal or financial involvement which might reasonably be expected to impair their objectivity or independent judgment.

Finally, the board member inquired about her ability to sit in on the negotiations committee’s updates on collective negotiations, which are given to the total board during executive session meetings. The SEC found that a board member, who has recused herself because a spouse or sibling is subject to the district’s bargaining agreement, should receive the information only when it is released to the general public. In such a situation, the concern remains that district board members must be able to meet, discuss and vote on such matters freely.

In Ethics Advisory Opinion A24-12, the SEC advised that a board could not invoke the Doctrine of Necessity to permit the entire board, including conflicted board members, to participate in its search for a new superintendent, where only four out of nine members were without conflicts. The board member indicated that having fewer than a quorum to conduct the search inhibits the board’s ability to engage in the search, application review, and interview of candidates.

The SEC advised that there is no need to invoke the Doctrine of Necessity until the full majority of the board is required to vote on the appointment. Since there are four members who are not conflicted, they may serve as the selection committee.

In Benjamin v. Masciocchi and Winslow Bd. of Ed., the commissioner addressed the novel question of whether a board member was disqualified from board service because she was receiving unemployment benefits as a result of her former employment as a student aide in the district. The commissioner adopted the comprehensive analysis of the ALJ who, in his initial ruling, concluded the receipt of benefits in this case did not constitute a disqualifying “conflict or claim” against the board.

The ALJ noted that a person obtains unemployment compensation not by making a claim to or against the employer, but rather to the Division of Unemployment and Temporary Disability Insurance of the state Department of Labor and Workforce Development. Eligibility for benefits and the amount and duration of benefits are governed by a statutory formula and are paid “from the fund,” not the employer. The fund is financed through mandatory contributions by covered employers and employees. Nor is the employer required to participate in the appeals process. The ALJ also pointed out that there was no adversarial claim or likelihood of “protracted and intractable litigation” between the parties since the board had never challenged the state’s determination of the board member’s eligibility for benefits. Nor did the entitlement for benefits constitute a contract with the board. The district uses the contributory method with respect to unemployment insurance, and remits quarterly contributions to the Unemployment Compensation Fund under a consolidated rate established annually and shared by all governmental contributory employers. Because the fund is financed through these “mandatory&rdquo’ contributions, wrote the ALJ, the board has no connection with the board member’s claim for unemployment benefits, and if for some reason the state failed to pay her benefits, the board would not be obligated to fulfill the state’s obligation.

In the June ruling of Doran v. King, the commissioner determined that a board member’s position as deputy chief of police was not incompatible with serving as a member of the board of education of the town which employs him. The commissioner agreed with the administrative law judge’s initial decision and rejected allegations that the board member had an interest in a contract that created a conflict of interest between the two positions.

The fact that law enforcement was a party to the “Uniform State Memorandum of Agreement between Education and Law Enforcement Officials” (MOA) did not disqualify the police officer from board membership. The commissioner distinguished this type of contract from that of a commercial or employment contract between two parties with separate, individual interests. Rather, explained the commissioner, the MOA evidences a commitment between law enforcement and educators to work together toward the mutual goal of keeping the schools and students safe from drugs and alcohol, firearms and other weapons, harassment, bullying, gangs, computer crimes, and other current threats to school safety and security. The board member derived no personal or individual interest from the MOA and none of the prohibitions in the conflict of interest law were implicated.

Nor was there any inherent conflict between the respondent’s duties as deputy police chief and his responsibilities as a board member, wrote the commissioner. He noted that when issues which could have given rise to an appearance of conflict were on the board’s agenda – such as the issue of remuneration for police officers who provide security at school events, and the discipline of a student who had been arrested for assault – the board member had refrained from voting. Given his abstention, the commissioner could not find that the board membership was in conflict with, or incompatible with, the member’s job in the police department.

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