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Board Member Denied Standing to Challenge School Ethics Act on First Amendment Grounds

Do board of education members have standing to challenge the enforcement of the School Ethics Act on First Amendment grounds? In the case of Nazarene v. Dehmer, 2026 U.S. Dist. LEXIS 115888 (May 26, 2026), the District Court for the District of New Jersey denied a board member’s request to enjoin enforcement of the School Ethics Act against her related to her use of social media, and issued an order to show cause as to why her complaint should not be dismissed with prejudice.

In this case, the plaintiff was a board member for a term beginning in February 2025 and ending in December 2027. Prior to the election, the plaintiff created and used a Facebook page to promote her campaign. Once elected, she continued to use her Facebook page to engage constituents about public school matters to solicit feedback. Some, but not all, of these posts included disclaimers indicating that the opinions expressed were her personal opinions. Plaintiff’s fellow board members grew concerned that her social media activity was violating several provisions of the School Ethics Act, particularly those sections that prevent Board members from taking action to compromise the board. Plaintiff’s fellow board members filed a school ethics complaint regarding the Facebook posts. Plaintiff responded to the complaint asserting that her communications with constituents were protected by the First Amendment. Instead of defending against the school ethics complaint, plaintiff filed a lawsuit in federal court against the Commissioner of Education and the complainants, which stayed the school ethics action.

Plaintiff alleged “Defendants’ past interpretation and enforcement of the Act have forced her to choose between self-censorship and the risk of formal discipline, and that this chill on her speech violates her First Amendment rights.” Plaintiff filed a motion for preliminary injunction along with the complaint, asking the court to prevent enforcement of the act to prevent plaintiff from speaking on matters of public concern. The Court found that it could not grant plaintiff’s motion without analyzing whether she had standing to bring a First Amendment Claim.

The Court concluded the plaintiff failed to demonstrate standing for the purposes of her motion. Thus, the Court denied the preliminary injunction and issued an order to show cause why the Complaint should not be dismissed for lack of standing. The Court focused on the fourth element of First Amendment standing, which is whether the threat of enforcement of the challenged law is credible and substantial. Crucial to the Court’s analysis was the finding that prior Commission decisions reflect a fact-specific and uneven enforcement history, rather than a clear pattern of sanctioning personal-capacity speech. Moreover, the School Ethics Act’s screening mechanism, the absence of a probable cause finding by the Commission, the stay on enforcement during the civil suit, and the purely civil nature of any sanction made the alleged threat too attenuated to establish standing.

This case is meaningful because it indicates that a board member does not have standing to preemptively challenge enforcement of the School Ethics Act on free speech grounds.

Appellate Division Reverses the Removal of School Board Member Who Sought Tuition Reimbursement

By: Eric Richwine, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On November 9, 2023, the New Jersey Appellate Division issued a published decision in Board of Education of the Borough of Kinnelon v. D’Amico in which it reversed the final decision of the New Jersey Commissioner of Education (“Commissioner”) to remove a parent from her duly elected school board position for a purported conflict of interest following the submission of a ten-day letter on behalf of her special education child.

In January of 2021, Ms. Karen D’Amico (“D’Amico”) was sworn in as a member of the Board of Education of the Borough of Kinnelon (“Board”).  D’Amico was noted as having a history of filing a series of ten-day letters on behalf of her child with special needs enrolled in private education and several due process requests primarily for tuition reimbursement purposes throughout 2018 to 2020.  Ten-day letters are used in special education cases to preserve a parent’s right to reimbursement for private school placements for special education students. Following her election to the Board, on February 1, D’Amico’s husband re-filed a prior due process petition seeking tuition reimbursement; D’Amico withdrew the petition within an hour after her husband filed it.

Soon after, in April, the Board filed an amended verified petition with the Commissioner asking for a declaratory ruling that D’Amico was disqualified from serving on the Board, reasoning that she had a direct or indirect interest in substantial financial claim against it.  The Board also moved for a summary judgment decision against D’Amico.  The Commissioner denied the Board’s request for declaratory relief and transmitted the matter to the Office of Administrative Law, where D’Amico filed a cross-motion for summary decision.  While her cross-motion was pending, D’Amico submitted a ten-day letter on August 13, 2021, notifying the Board of her intent to unilaterally place her child in a private school for the following school year and reserving the right to seek reimbursement for the placement costs.

The Administrative Law Judge (“ALJ”) issued an initial decision in favor of D’Amico, finding that after her husband re-filed the due process petition, she quickly remedied the violation by immediately withdrawing it.  The ALJ also found that, as no due process petition was filed relative to D’Amico’s ten-day letter dated August 13, 2021, the letter served as a notice, not a claim, and it therefore was permissible under the School Ethics Act.  The Board filed exceptions, and on December 2, 2021, the Commissioner adopted the ALJ’s decision with respect to the due process petition but found that the ten-day letter constituted a claim for monetary relief against the Board that precluded her continued service as a member; as a result, D’Amico was removed from the Board.  This appeal followed.

The issue before the Appellate Division was whether the submission of a ten-day letter raises a substantial conflict of interest as to warrant the removal of a school board member.  In making its determination, the Appellate Division referred to the New Jersey Supreme Court’s holding in Bd. of Ed. of City of Sea Isle City v. Kennedy, where the Court determined a due process claim that included a request for specific monetary relief to be a substantial conflict between a board member and the board, requiring removal.  However, the Appellate Division determined that, in contrast to Kennedy, the letter here did not assert a “request for monetary relief.”  Rather, the language used by the D’Amicos, as evidenced by the ten-day letters submitted prior to D’Amico’s appointment to the Board, only served to alert the Board that the D’Amicos intended to “seek reimbursement from the District” in the future. 

The Board argued that the ten-day letter “portends the likelihood of protracted, and intractable, litigation between the parties,” per the Kennedy decision, but the Appellate Division disagreed, finding there was no evidence to suggest that the D’Amicos signaled an intention to commence litigation against the Board.  Although the Appellate Division contended that if the D’Amicos filed a timely due process request for tuition reimbursement, then D’Amico’s removal from the Board would be proper under Kennedy – but this “line had not yet been reached”.  As such, the Appellate Division reversed and remanded.  

Individual Prohibited from Simultaneously Serving on Two Boards of Education

In November 2013, Jeffrey Fischer was elected to the Manchester Regional High School Board of Education (“Manchester Board”) for a three-year term expiring in January 2017. He was also elected to the Haledon Board of Education (“Haledon Board”) in November 2015 for a three-year term commencing in January 2016. The Haledon Board serves students in kindergarten through eighth grade and then sends its students to the Manchester Regional School District for high school. On May 30, 2018, the Appellate Division in Fischer v. State of New Jersey confirmed that an individual is prohibited from serving on two boards of education at the same time.

Fischer filed for declaratory judgment seeking clarification from the court as to whether he could be a board member for both boards of education at the same time even though N.J.S.A. 19:3-5.2 prevents him from doing so. N.J.S.A. 19:3-5.2 reads, in part:

For elective public office other than as provided in R.S.19:3-5 or N.J.S.40A:9-4, a person elected to public office in this State shall not hold simultaneously any other elective public office.

The trial court determined that N.J.S.A. 19:3-5.2 was ambiguous and ruled that Fischer could serve on both boards simultaneously. The trial court found that the legislative intent of the statute was to prohibit an individual from collecting two salaries and two pensions if holding two elected positions. As a board of education member, Fischer did not receive any compensation.

On appeal, the Appellate Division rejected Fischer’s arguments that the statute should be interpreted liberally. While the Appellate Division acknowledged that N.J.S.A. 18A:38-8.1 permits limited dual-office holding in which a board member of a sending school district may sit on the board of the receiving district only to consider issues involving the sending district, the statute does not explicitly authorize complete dual-office holding.

The Appellate Division further reasoned that the Legislature did not carve out an exception to N.J.S.A. 19:3-5.2 which would allow an individual to serve on two boards of education at the same time. In short, the Appellate Division reinforced that an individual may not be elected to two school boards nor sit on two boards simultaneously without explicit statutory authority.

Appellate Division Affirms Board Member’s Eligibility to Serve on Board of Education

On March 7, 2016, the Appellate Division in Stargell v. Snyder, 2016 N.J. Super. Unpub. LEXIS 485 (App. Div. 2016) affirmed the trial court’s determination that a board member of the Pennsauken Board of Education (“Board”), who assigned an outstanding claim against the Board for reimbursement of unused sick leave to her adult daughter, was not disqualified from serving on the Board.

The Board employed Margaret Snyder as a school nurse for twenty-seven years. In March 2013, she provided notice of her retirement effective July 1, 2013. Snyder then made a request to the Board for compensation for unused sick leave time totaling approximately $14,000. On June 4, 2013, prior to her retirement, Snyder filed a nominating petition to run for the Board. She was then successful in securing a seat on the Board during the November 2013 election. Snyder was slated to be sworn into office in January 2014.

Plaintiffs, who were other candidates running for the Board, filed their complaint after the election in the Law Division of the Superior Court alleging that Snyder was ineligible to serve on the Board because of her outstanding request for reimbursement of unused sick leave. Plaintiffs alleged that Snyder violated N.J.S.A. 18A:12-2, which bars a member of the Board from having a direct or indirect claim against the Board. In response, Snyder initially attempted to resolve the outstanding claim with the Board prior to being sworn into office, but her efforts were unsuccessful. Therefore, in order to cure the alleged conflict, Snyder executed an assignment of her claim to her adult daughter, who was not a member of her household. Snyder filed the assignment with the Board on January 1, 2014. She was sworn into office on January 6, 2014.  Ultimately on January 30, 2014, the Board, without Snyder’s participation, approved payment of claim.

Under these circumstances, the Appellate Division found that Snyder did not maintain a direct or indirect interest in a claim against the Board in violation of N.J.S.A. 18A:12-2 after she assigned her claim for reimbursement of unused sick leave time to her daughter.  Specifically, the Appellate Division rejected Plaintiffs’ argument that Snyder had an indirect interest because the Commissioner of Education has held that a family member’s claim does not create an incurable conflict of interest “where a choice can freely be made between board membership and maintaining a claim against the board.”  Moreover, the Appellate Division determined that there existed no contractual or public policy prohibition against Snyder assigning her claim to another individual.

The Appellate Division also noted that even after Snyder assigned the claim to her adult daughter, no evidence suggested that she had a direct or indirect interest in that claim, particularly in light of the fact that the daughter was not part of Snyder’s household. Further, no evidence suggested that Snyder and her daughter maintained a financial arrangement in which Snyder would later receive payment of the claim from her daughter.

Board members may review advisory opinions and decisions by the School Ethics Commission to provide guidance when confronted with a potential conflict of interest issue. However, as conflict issues may arise from unique factual circumstances, board of education members should consult with their board attorney.

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