N.J. Supreme Court Issues Important Decision Impacting the Provision of a FAPE to Special Education Students

On Aug. 7, 2024, the New Jersey Supreme Court issued a precedential decision addressing the question of whether, under the Individuals with Disabilities Education Act, a student with disabilities who receives a state-issued diploma based on passing the General Education Development test, is entitled to re-enroll in his local public high school to receive a free appropriate public education.

The operative facts from M.N. o/b/o A.D. v. Board of Education of the Township of Sparta are as follows. A.D., a special education student in tenth grade, was advised that he was in danger of failing several classes. Following this notification, A.D.’s parents withdrew him from the district in March 2019. A.D. subsequently took and passed the GED, thereby receiving a state-issued high school diploma. Prior to the end of the 2018-2019 school year, A.D. was re-enrolled in the district. Although the district initially denied that it had any obligation to provide A.D. with a FAPE because he had already received his GED, it allowed him to remain enrolled in the district, and provided the required services.

In February 2020, A.D. was again in danger of failing several classes. In March 2020, and due to the COVID-19 pandemic, the district stopped providing in-person instruction to all students. Even though A.D. was issued a computer for remote learning, he did not attend remote classes or complete required assignments; therefore, he received no academic credit for the 2019-2020 school year. On June 8, 2020, A.D. was again withdrawn from the district.

In September 2020, M.N. began the process of re-enrolling A.D. in the district. Ultimately, however, he did not attend school because he chose to enlist in the U.S. Army. In May 2021, and after being medically discharged, M.N. tried to re-enroll A.D. in the district. This time, Sparta denied the request, and maintained that it did not have an obligation to provide A.D. with a FAPE because he had already received a state-issued high school diploma in April 2019.

After a due process petition was filed, an administrative law judge determined that the state-issued diploma A.D. received was “not merely . . . a GED” but was a “regular high school diploma” that was “fully aligned with state standards.” As a result, the administrative law judge determined that A.D. was no longer entitled to a FAPE in the district.

The commissioner of education concurred with the administrative law judge that “A.D.’s [GED] is a ‘regular high school diploma’ that is fully aligned with state standards” and, as a result, “A.D. is no longer entitled to a [FAPE] in Sparta or any other New Jersey school district.” The commissioner of education further reasoned that, pursuant to N.J.A.C. 6A:8-5.2, there is “no distinction” between a state-endorsed diploma and a state-issued diploma, and “both diplomas demonstrate that the student has completed an education that is fully aligned with state standards.” Stated differently, a state-issued diploma is “in no way a lesser credential” than a state-endorsed diploma.

The Appellate Division affirmed, concluding that there was “no basis to undo [the New Jersey Department of Education’s] policy determination.”

The New Jersey Supreme Court granted M.N.’s petition for certification to determine whether a state-issued high school diploma (based on the passing of the GED) is a “regular high school diploma” within the meaning of the IDEA. If it is, Sparta did not have a continuing obligation to provide A.D. with a FAPE. If it is not, then A.D. remained eligible to receive, and the district was obligated to provide, a FAPE.

In its decision, the New Jersey Supreme Court noted that the IDEA and its implementing regulations define a “regular high school diploma” as the standard high school diploma awarded to the preponderance of students in the state that is fully aligned with state standards, or a higher diploma,” but it “does not include a recognized equivalent of a diploma, such as a general equivalency diploma.”

In New Jersey statutes and regulations, two types of high school diplomas are recognized: state-endorsed diplomas and state-issued diplomas. A “state-endorsed diploma” is “a locally-issued document awarded to an existing student indicating successful completion of high school graduation requirements.” State-issued diplomas, on the other hand, are issued not by local school districts, but by the commissioner of education, and do not require students to meet the same graduation requirements. Instead, they can be earned by “demonstration of the appropriate level of academic competency,” including by passing the GED.

Ultimately, the New Jersey Supreme Court held that a state-issued diploma is not a “regular high school diploma” under the IDEA and its implementing regulations. In so finding, the New Jersey Supreme Court noted that the commissioner of education conceded, and the operative statistics verified, that a state-endorsed, rather than a state-issued, diploma is “the standard high school diploma awarded to the preponderance of students in the state that is fully aligned with state standards”; the New Jersey Legislature and the Department of Education “distinguish between state-issued and state-endorsed diplomas”; the last sentence of the federal regulation specifies that “a regular high school diploma does not include a recognized equivalent of a diploma, such as a general equivalency diploma, certificate of completion, certificate of attendance, or similar lesser credential”; and when a state-issued diploma is awarded “based on achieving the statewide standard score on the GED, … it is precisely the type of “general equivalency diploma” that does not qualify as a “regular high school diploma” under the IDEA.

According to the New Jersey Supreme Court, in obtaining a state-issued diploma based on passing the GED, A.D. obtained a degree documenting “the attainment of academic skills and knowledge equivalent to a high school education,” but did not obtain a “regular high school diploma” within the meaning of the IDEA. Consequently, the New Jersey Supreme Court found that a student’s receipt of a state-issued diploma does not terminate a district’s obligation to provide a FAPE to any student who is eligible to receive one.

District administrators and boards of education are encouraged to speak with their board attorneys to discuss the implications of I/M/O A.D., and the continuing obligation to provide a FAPE to students with disabilities who may have already received their GED.

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