An integral part of NJSBA’s advocacy on behalf of its members is its participation as amicus curiae, or “friend of the court,” before the federal courts and the state courts and administrative agencies. NJSBA has a long history of successfully representing local boards of education interests regarding the statewide impact of judicial and administrative decisions on the state’s educational landscape. This program is celebrating its 40th anniversary this year.
Generally, these matters concern an appeal from a state court or administrative entity final decision, and are heard before the New Jersey Appellate Division or Supreme Court.
Amicus requests may be made by a member board of education, but more frequently are made by counsel representing the board. Each request is reviewed in consideration of the NJSBA Manual of Positions and Policies on Education. NJSBA policies are adopted by the Delegate Assembly at its regular meetings; every district may send a delegate to the assembly.
Requests are directed to the NJSBA general counsel, who reviews the matter, facts and legal precedent, and the potential for statewide impact on boards of education. NJSBA policy is reviewed, and then the general counsel makes a recommendation to the executive director for consideration.
In the event there isn’t policy on point, and the matter warrants NJSBA’s participation as amicus, the executive director may request approval from the NJSBA Board of Directors, recommending a policy position in the matter. If the matter is of an emergent nature, the NJSBA executive committee may take action on the executive director’s recommendation between meetings of the board of directors.
In making a determination as to formal amicus participation in a particular case, the general counsel considers the following:
- The relative importance or potential statewide impact of the legal issue to boards of education;
- Whether the legal arguments presented by the Association would be helpful in providing a statewide perspective, and would not be merely duplicative of the arguments presented by the parties and other amici in the case;
- The court or administrative agency before which the case is pending (e.g., Supreme Court, Appellate Division, PERC, the commissioner, State Board of Education, federal district court);
- The presence and importance of factual issues in addition to the legal issues in the case;
- The probability of success;
- The available resources of the Association; and
- The likelihood that the court or administrative agency will grant entry into the case in accordance with R. 1:13-9, N.J.A.C. 6A:4-3.2 or other applicable rule.
Successful Amicus Filings Recently, NJSBA participated in oral argument before the New Jersey Appellate Division.
In the case, two plaintiffs made requests for student records, pursuant to the state Open Public Records Act law (OPRA) in 12 different matters. The 12 matters were consolidated into four representative cases, and consistent with NJSBA’s argument, the Appellate Division ruled in favor of the four districts.
NJSBA’s argument highlighted that OPRA acknowledges federal and state law and regulatory exceptions to the release of government documents to the public, pursuant to FERPA (the federal Family Educational Rights and Privacy Act) and the New Jersey Pupil Records Act (NJPRA), and that student records under NJPRA are exempt from third-party access. The unanimous appellate panel determined that NJPRA specifically prescribes who may have access and under what circumstances. That court denied the plaintiffs’ requested relief, including attorney fees, which are eligible to prevailing parties under OPRA.
In December 2017 the plaintiffs filed for certification before the New Jersey Supreme Court to hear the matter (since the appellate panel unanimously denied plaintiffs’ requested relief), arguing that privacy concerns for student records may be cured by redaction of identifying information; an argument rejected by the appellate panel. NJSBA will participate if certification is granted.
The consolidated cases are: The Innisfree Foundation v. Cherry Hill Board of Education and James Devereaux, records custodian; The Innisfree Foundation v. Hillsborough Twp. Board of Education and Aiman Mahmoud, records custodian; L.R. v. Parsippany-Troy Hills Twp. Board of Education and David Corso in his official capacity as the township clerk; L.R. individually and on behalf of J.R. v. Camden City Board of Education and John C. Oberg in his official capacity as interim school business administrator and board secretary.
Additional matters in which NJSBA has participated as amicus include a matter concerning the Open Public Meetings Act (OPMA). In Opderbeck v. Midland Park Board of Education, the trial court granted the plaintiff’s application for supplemental materials to the agenda holding that “providing agendas which are incomprehensible without the supplemental attachments falls short of the goals of the legislation (i.e. the OPMA and OPRA)…By failing to provide these attachments prior to the Board meeting, the public is unable to act as an informed citizenry.”
NJSBA successfully argued before the Appellate Division that the board complied with the operational provisions of the OPMA; and highlighted the trial court’s activist decision in this matter where it unilaterally defined “adequate notice” to require attachments to an agenda, which is the legislature’s authority.
In a tenure matter under TEACHNJ, Bound Brook Board of Education v. Ciripompa, the Bound Brook school district sought to revoke the defendant’s tenure based upon unbecoming conduct for improper use of district-owned equipment, and unbecoming conduct that centered upon his inappropriate and unprofessional conduct towards female staff members.
The arbitrator found the district proved the first charge, but not the second, where the arbitrator had changed the charge to that of hostile work environment, instead of conduct unbecoming. The teacher’s dismissal was modified by the arbitrator to a 120-day suspension without pay, which the Appellate Division affirmed.
NJSBA, and the Bound Brook Board of Education, successfully argued before the New Jersey Supreme Court the statewide significance of procedural irregularity of the arbitrator decision to change the charge from unbecoming conduct by harassing colleagues to creating a hostile work environment. The state Supreme Court held that the arbitrator had imperfectly executed [his or her] powers and exceeded his or her authority, and that it was not necessary to prove a hostile work environment to satisfy the burden of showing unbecoming conduct.
The case was sent to a new arbitrator, who, in June 2017, ruled in favor of Bound Brook, which resulted in the termination of the teacher.
These are just a few of the matters in which NJSBA has advocated for its members and the schoolchildren of New Jersey in the courts. NJSBA members who wish to bring a possible amicus issue to NJSBA’s attention should contact the author at the email address below.