On Wednesday, March 29, 2023 from 10:00 a.m. to 12:00 p.m., Lauren E. Tedesco, Esq. and Sanmathi (Sanu) Dev, Esq., will be presenting a webinar sponsored by The Institute for Professional Development entitled, “Employee Leaves of Absence-What Public Employers Need to Know”. This webinar will familiarize public employers on how to properly administer the laws relating to the various types of employee leaves of absences including the Family Medical Leave Act, the New Jersey Family Leave Act, the Americans with Disabilities Act and more. For additional information and registration, please click here.
School Law Blog
Lead by Sanmathi (Sanu) Dev, Esq., this blog is devoted to current developments in New Jersey education law affecting school districts, charter schools, students, and employees.
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- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Seminars
On Wednesday, December 7, 2022 from 10:00 a.m. to 12:00 p.m., Sanmathi (Sanu) Dev, Esq. and Lauren E. Tedesco, Esq. will be presenting a webinar sponsored by The Institute for Professional Development entitled, “The New Jersey Earned Sick Leave Act-What Public Employers Need To Know.” Ms. Dev and Ms. Tedesco will be speaking about The New Jersey Earned Sick Leave Act. The topics include background on the Act and what the leave can be used for. For additional information and registration, please click here.
- Betsy G. Ramos
- NJ School Law, Other
In a published decision of the Appellate Division in Asphalt Paving Sys. v. Borough of Stone Harbor, 2022 N.J. Super. LEXIS 136 (App. Div. Nov. 14, 2022), the Court was asked to decide whether a bidder to a public contract, to be issued by Borough of Stone Harbor, submitted a statutorily compliant bid by listing its shareholders’ post office box, instead of a home address. The Court had to address whether N.J.S.A. 52:25-24.2, which required that no business entity may be awarded a public contract unless it submits with its bid “a statement setting forth the names and addresses of the individuals owning more than ten percent of the entity” mandated that a home address for the owners be provided.
In August 2020, the Borough of Stone Harbor had issued a notice to bidders, inviting the submission of bids for a construction project. Fred M. Schiavone Construction, Inc. submitted the lowest bid and Asphalt Paving Systems, Inc. had the second lowest bid. With its bid, Schiavone identified Fred and Roberta Schiavone as its two stockholders and provided a post office address for them. The bid was awarded to Schiavone as the lowest bidder.
In October 2020, Asphalt Paving filed a lawsuit challenging the award of the contract to Schiavone on the basis that Schiavone failed to meet the requirement of N.J.S.A. 52:25-24.2 because home addresses of the two stockholders were not provided, despite the bid specifications asking for the inclusion of the owners’ home addresses. The trial judge determined that this omission was a “waivable” requirement because it would not “deprive the municipality of its assurance that the contract would be entered into, performed and guaranteed according to its specified requirements and would not give the bidder a position of advantage over other bidders or … undermine the necessary common standard of competition.”
This ruling was appealed to the Appellate Division. The Court rejected Asphalt Paving’s argument that the bidder’s owners’ home addresses must be provided. The Appellate Division noted that it must examine the language of the statute to determine legislative intent in enacting a law. A court may not rewrite an enactment of the Legislature and “presume the Legislature intended something other than that expressed by way of the statute’s plain language.”
Here, the Court noted that the word “address” could suggest multiple things because a person could have multiple addresses – home, business, or mailing address. The Appellate Division found that “[t]here was no evidence in the enactment itself, and nothing about the statutory goals the Legislature was pursuing by enacting the statute, to suggest a desire to compel the production of one of these types of addresses.”
Finally, the Court stated that it would ascribe to the word “address” its generally accepted meaning and concluded that the Legislature intended that a bid would comply with N.J.S.A. 52:25-24.2, “so long as the bidder provided the home, business or mailing address for each owner of ten or more percent.” If the Legislature intended to require the bidder’s owners to provide their home address, it would have stated “home addresses” in the statute versus just using the term “addresses.”
Hence, the trial court’s decision upholding the award to Schiavone was affirmed.
- Sanmathi (Sanu) Dev, Esq.
- Labor & Employment, NJ School Law
By: Erika Vasant, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
On August 25, 2022, in Sanjuan v. School District of West New York, the New Jersey Appellate Division in a published decision addressed the scope of an arbitrator’s authority under N.J.S.A. 18A:6-16 regarding tenure charges against a teacher. The Appellate Division held that an arbitrator may uphold a suspension without pay if a teaching staff member’s conduct was unbecoming. However, arbitrators lack the authority to demote teaching staff members from their positions.
In this case, the West New York Board of Education (“Board”) demoted plaintiff Sanjuan from assistant principal to fourth-grade teacher for inappropriate conduct. Sanjuan attended a high school activity and fell down a flight of stairs. After the fall, she reached into her purse, removed a piece of paper, and walked halfway up the stairway to place it on one of the steps. She then returned to the bottom of the stairs. The incident was caught on camera. The next morning, the benefits coordinator contacted her, and she confirmed that she fell after seeing the piece of paper on the stairs. The school district found that she manipulated the scene, allowed a false incident report to be made, and engaged in insurance fraud.
The Board approved tenure charges against Sanjuan in accordance with the Tenure Employees Hearing Law (“TEHL”), suspending her for 120 days without pay. After reviewing Sanjuan’s response, the Commissioner of Education found that Sanjuan’s conduct warranted “dismissal or reduction in salary” and referred the case to an arbitrator in accordance with N.J.S.A. 18A:6-17.1. The arbitrator found that Sanjuan’s conduct warranted retention of her tenure but as a fourth grade teacher (instead of assistant principal) without back pay. Sanjuan sought to vacate the arbitration reward, be reinstated as assistant principal, and receive the lost wages. The trial court then denied her relief, and affirmed the entire arbitration award. Sanjuan appealed.
On appeal to the New Jersey Appellate Division, Sanjuan argued that the arbitrator exceeded his authority and that since her tenure was not terminated, she should receive back pay during her suspension. The Appellate Division disagreed and noted that the trial court upheld the Board’s determination of Sanjuan’s conduct as unbecoming. Accordingly, under N.J.S.A. 18A:6-14, the arbitrator’s determination that Sanjuan was not permitted to receive back pay was authorized. However, the Appellate Division found that the arbitrator exceeded his authority in demoting Sanjuan, because it deviated from the disciplinary action specified in N.J.S.A. 18A:6-10. The statute provides that tenure charges against a teaching staff member may only include either termination or depriving him or her of salary – not demotion.
As a result, the Appellate Division vacated the trial court’s order and remanded the case to the arbitrator to “reconsider the penalty of termination.”
- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Open Public Records Act
By: Angela Reading, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
On September 29, 2022, the New Jersey Appellate Division in L.R. o/b/o J.R. v. Cherry Hill Board of Education issued a published decision affirming a ruling by the Superior Court of New Jersey, which held that a district could redact all parent and student information, including initials, when providing settlement agreements in response to an Open Public Records Act (“OPRA”) request.
In this case, the plaintiff, the mother of a student with a disability, made an OPRA request to the defendant Cherry Hill Board of Education (“Board”) for all settlement agreements in which the Board was named as a defendant and a student and/or their parent was named as a plaintiff. The Board provided the records sought but redacted all parent and student information, including initials. The plaintiff sued, asserting that the Board violated OPRA and improperly withheld information by redacting all personally identifiable information (“PII”).
In January 2015, the trial court granted the Board’s cross-motion for summary judgment, finding the initials were exempt from disclosure under the Family Educational Records and Privacy Act (“FERPA”) and the New Jersey Pupil Records Act (“NJPRA”). The plaintiff appealed and the matter was stayed pending the resolution of L.R. I and L.R. II. Following L.R. II, a special master adjudicated the Board’s motion to dismiss for failure to state a claim and recommended the court grant the motion. Plaintiff appealed the recommendation, and the trial judge affirmed, adopting the master’s findings of fact and conclusions of law.
The discrete issue raised on appeal was whether the Board should have redacted the PII altogether as opposed to leaving the initials intact. The plaintiff asserted the trial court erred by relying on the 2015 summary judgment decision and misunderstood the holdings of L.R. I and L.R. II.
The Appellate Division upheld the trial court’s decision, finding that using students’ initials is insufficient to protect identity as required by FERPA and NJPRA. The Court further held that just because the information may ordinarily be available to and accessible by the public — as legal submissions filed with the court — that does not “ipso facto mean that no legitimate privacy interest predominates.”
- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Special Education/504
By: Angela Reading, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
The Individuals with Disabilities Education Act (“IDEA”) and New Jersey law allow school districts to use two methods to determine specific learning disability (“SLD”) of a student who may qualify for special education: the severe-discrepancy approach and the response-to-intervention approach (“RTI”). The severe-discrepancy method examines whether there is a severe discrepancy between the student’s current achievement and intellectual ability in one or more areas of academic aptitude. N.J.A.C. 6A:14-3.5(c)(12)(i). The RTI method applies intensive and individualized instruction and evaluates the child’s progress in response to that intervention. 20 U.S.C. § 1414(b)(6)(B); N.J.A.C. 6A:14-3.5(c)(12)(ii).
On July 1, 2022, the Third Circuit Court of Appeals in J.M and E.M o/b/o C.M. v. Summit City Board of Education reaffirmed that school districts may use RTI rather than a severe discrepancy approach to determine SLD eligibility.
In September 2015, when C.M. was in first grade, he started exhibiting behavioral and academic issues. The district’s multidisciplinary intervention team began using an RTI approach to improve C.M.’s performance. In October 2015, C.M.’s parents supplied an independent educational evaluation (“IEE”), which diagnosed C.M. with an SLD based on the severe-discrepancy approach. The district evaluated C.M. for special education and related services at the parents’ request.
In February 2016, the district determined that C.M. was ineligible for special education and related services. In support of their decision, the district relied on the positive effects of the strategic behavioral and academic interventions, which reduced the incidents of poor behavior and improved C.M.’s progress in reading and math. The district noted that C.M. had some areas of weakness based on his aptitude scores. However, because he had positively responded to the interventions, they decided to continue implementing those in lieu of special education and related services. In April 2017, the district found C.M. eligible for special education after he was diagnosed with autism and ADHD.
C.M.’s parents filed for due process under the IDEA and Section 504 of the Rehabilitation Act, asserting that the district violated its “child-find duty” by erroneously concluding that C.M. did not have an SLD as of February 2016. The parents’ claims did not succeed at the administrative level or in the District Court. The parents appealed the District Court’s ruling to the Third Circuit Court of Appeals.
The Third Circuit held that the district did not violate its “child-find duty” by concluding that C.M. did not have an SLD. The Court found that the intervention and evaluation teams consisted of “trained and knowledgeable personnel” as required by the IDEA. 20 U.S.C. § 1414(b)(3)(A)(iv). The Court also found that teams gained relevant information about C.M.’s educational needs through a recognized method — incremental, potentially escalating interventions based on different tools and strategies. 20 U.S.C. § 1414(b)(3)(C), (b)(2)(A). Having met the relevant statutory requirements and having observed that C.M.’s classroom behavior and academic performance improved in response to interventions, the Court held that the district met its “child-find” obligations.
The Court noted that although C.M.’s measured achievement in three areas would have qualified him as having an SLD under the severe-discrepancy approach, neither the IDEA nor New Jersey law requires districts to use that approach — or even consider the results of that approach for child-find purposes.
This case illustrates that if a district can demonstrate a child responds well and makes meaningful progress using RTI, it likely will fulfill its child-find obligation.
- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Open Public Records Act
By: Angela Reading, Law Clerk.
Editor: Sanmathi (Sanu) Dev, Esq.
On June 21, 2022, the New Jersey Appellate Division in S.W. v. Elizabeth Board of Education confirmed in an unpublished opinion that a request made under the Open Public Records Act (“OPRA”) to an attorney for a public entity is invalid. The Appellate Division held that OPRA explicitly requires a request for access to a government record to be “to the appropriate custodian,” and counsel for a board of education is not a custodian within the meaning of OPRA under N.J.S.A. 47:1A-5(g).
This case arose from a special education due process petition brought by the parents on behalf of their son against the Elizabeth Board of Education (“Board”). The Administrative Law Judge (“ALJ”) in that case instructed the parties to stipulate as many documents as possible. The Board’s counsel provided 148 pages of documents, including the student’s grades, progress reports, attendance records, and special education records. The parents claimed that the documents were incomplete.
The parents did not seek to compel discovery before the ALJ for the alleged missing documents. Instead, the attorney for the parents sent an OPRA request to the Board’s counsel. The Board denied any obligation to provide documents under OPRA because no valid OPRA request had been submitted to the Board’s records custodian, nor to an officer, employee, or office of the district. The parents then initiated a lawsuit in the Law Division of the Superior Court of New Jersey, claiming the Board’s failure to produce the additional documents was a denial of public records under N.J.S.A. 47:1A-5(i) and a violation of OPRA. The parents also claimed that the OPRA request to the Board’s counsel was appropriate because Rule of Professional Conduct 4.2, which prohibits direct communication with a client known to be represented by counsel, prohibited them from communicating directly with the district. After the trial judge ruled in favor of the Board, the parents appealed to the New Jersey Appellate Division
The Appellate Division affirmed the trial court’s decision and upheld the Board’s denial of records as consistent with OPRA’s clear requirement that such a request be submitted to the agency’s custodian. The Appellate Division rejected the claim that the Board’s counsel was covered by the statutory requirement that “an officer or employee of a public agency” who receives an OPRA request must forward the request to the custodian. The Court held that outside counsel representing the agency is not an “officer or employee” of the agency.
The Appellate Division also addressed whether RPC 4.2 prohibits a party that sued a public agency from submitting an OPRA request directly to the agency. The Court said it does not, emphasizing that the RPC exempts communications with the government, such as OPRA requests. Specifically, RPC 4.2 contains an exception for when the law authorizes such direct contact to ensure “a citizen’s right of access to government decision-makers.”
- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Other
By: Angela Reading, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
On June 27, 2022, the U.S. Supreme Court in Kennedy v. Bremerton School District held that a public school football coach’s prayers on the football field, in public after football games, were protected under the Free Exercise and Free Speech Clauses of the First Amendment. The ruling highlights a conflict between First Amendment rights in public schools: the right to freely practice and express religion and the right of others to be free from the state endorsing religion.
For years, Joseph Kennedy, an assistant football coach in Bremerton, Washington, walked to the 50-yard line after games and visibly offered a prayer – first alone, but later with players and even some members of the opposing team joining him. When school officials learned of this practice, they asked him to stop, concerned that students may feel compelled to participate and the practice would give the impression that the district endorsed the religious activity, as the coach was still “on-duty” as a district employee. The coach temporarily agreed to stop but soon resumed his post-game prayers, declining offers by district officials to accommodate his prayer in other, less public ways. The school district placed the coach on administrative leave and, eventually, declined to renew his contract for the following season.
The coach sued in federal court, alleging that the school district’s actions violated the First Amendment. Both the District Court and the Ninth Circuit ruled in favor of the school district. They concluded that the First Amendment’s Establishment Clause, which protects citizens from a state-endorsed religion, required public school districts to prevent teachers from praying where students might see them because students might feel coerced into joining in prayer.
The Supreme Court disagreed and reversed. In viewing the facts of this case, the Court determined that the coach’s conduct was private prayer. In a 6-3 decision, the Court ruled that two other clauses in the First Amendment, the Free Speech and Free Exercise Clauses, protected a public employee’s right to engage in private prayer on school grounds, even if students might join in, and that the Establishment Clause does not require the government to single out religious expression for “special disfavor.”
The majority rejected a line of cases beginning with Lemon v. Kurtzman. In Lemon, the Court created a test for when religious expression could rise to the level of an “establishment of religion.” In overturning Lemon, the Court held that the Establishment Clause should be interpreted by reference to historical practices and understandings. The Court stated, “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
The Court also dismissed the school district’s argument that students might have felt obligated to join the coach’s prayers. The Court noted that in this case, the coach’s “private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.”
Moving forward, school districts should exercise caution in restricting employee conduct related to private prayer. Furthermore, this case continues to support the requirement that school districts engage in a fact-specific analysis when faced with employees and First Amendment issues.
- Sanmathi (Sanu) Dev, Esq.
- Labor & Employment, NJ School Law
By: Angela Reading, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
In New Jersey, spring brings critical deadlines related to renewal decisions for teachers. N.J.S.A. 18A:27-10 mandates that by May 15 of each year, the chief school administrator provide non-tenured teachers with either a new employment contract or written notice of non-renewal of the employee’s contract. If a non-tenured teacher does not receive an employment contract or written notice by the May 15 deadline, under N.J.S.A. 18A:27-11, the employee is presumed to have received an offer of employment for the upcoming school year under the same terms and conditions of employment.
On April 29, 2022, the New Jersey Appellate Division in Vakulchik v. Board of Education of the Borough of Dunellen issued an unpublished decision affirming a ruling by the New Jersey Commissioner of Education, which held that a recommendation for non-renewal in a summative evaluation did not comply with the “written notice from the chief school administrator” requirement of N.J.S.A. 18A:27-10.
The controversy started on May 1, 2020, when Vakulchik, a non-tenured speech pathologist, received a summative evaluation from the district’s director of special services that included a recommendation that her contract not be renewed for the 2020-2021 school year. Based on this recommendation, Vakulchik emailed the superintendent on May 4, 2020, requesting a statement of reasons for the non-renewal. On May 5, 2020, the Board voted to accept the superintendent’s recommendations for renewal, which did not include Vakulchik.
Thereafter, Vakulchik did not receive a written notice from the superintendent that she was not being renewed by the May 15 deadline. On May 18, 2020, she emailed the superintendent and members of the Board stating that since she had not received notice of non-renewal in accordance with N.J.S.A. 18A:27-10; 27-11, she accepted the offer of employment. The superintendent responded that she was not renewed and did not have a contract for the following year. This was the superintendent’s first communication to Vakulchik about her non-renewal. After a Donaldson hearing, the Board non-renewed Vakulchik, thus terminating her employment.
Vakulchik challenged the Board’s action. An administrative law judge (“ALJ”) recommended upholding the non-renewal despite the Board’s failure to meet the notice requirements of N.J.S.A. 18A:27-10. The ALJ relied on Bernstein v. Board of Trustees of the Teachers’ Pension and Annuity Fund and concluded the Board substantially complied with the statute. The ALJ explained that Vakulchik did not suffer any prejudice, and the Board “was in general compliance with the purpose of the statute.” The ALJ further found that Vakulchik’s May 4, 2020, email established that she understood her contract would not be renewed, and this amounted to sufficient notice under Nissman v. Board of Education.
Vakulchik appealed the ALJ’s decision to the Commissioner of Education, who rejected the ALJ’s recommendation and found that the recommendation for non-renewal contained in the summative evaluation did not comply with the statutory demands of N.J.S.A. 18A:27-10, as that statute clearly requires “written notice from the superintendent,” which the Board did not provide. The Commissioner ordered that Vakulchik be reinstated with back pay.
The Board appealed to the Appellate Division, which upheld the Commissioner’s decision finding that the Board undisputedly did not meet the requirements of N.J.S.A. 18A:27-10. Therefore, N.J.S.A. 18A:27-11 required Vakulchik to be given a contract for the next year. The Court also rejected the Board’s argument that it substantially complied with N.J.S.A. 18A:27-10’s requirements. Substantial compliance will sometimes excuse failure to strictly comply with a law’s requirements, but only if the other party was not prejudiced and there is a reasonable explanation why there was not strict compliance with the statute. The Court found that the Board did not explain why it couldn’t comply, and clearly, Vakulchik was prejudiced.
The takeaway is that boards of education must strictly comply with the requirements of section N.J.S.A. 18A:27-10 – otherwise N.J.S.A. 18A:27-11 will require them to reemploy the employee the next school year, which might confer tenure.
- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Students
By: Becky Batista, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
On June 13, 2022, the New Jersey Appellate Division issued a published decision on an issue of first impression in C.V. v. Waterford Township Board of Education, where the Court addressed whether the New Jersey Law Against Discrimination (“LAD”) applies to claims arising from a sexual predator’s abuse against a young schoolgirl where such conduct was committed on a school bus. Based on the undisputed facts of this case, the Appellate Division concluded that the LAD did not apply because there was no evidence that gender motivated the assault.
This case concerned a five year old female student who was sexually assaulted by a bus aide who was assigned to the bus that took the student to and from school during the 2009-2010 school year. The bus aide was criminally charged, and he pled guilty to first-degree aggravated sexual assault. He was determined to be a compulsive and repetitive sex offender and was sentenced to a prison for sexual offenders. The parents of the student filed a civil complaint asserting negligence and violations of the LAD based on harassment and sexual abuse.
The trial court dismissed the parents’ LAD claim concluding that there was no evidence that the bus aide sexually abused the student because she was female, but instead he acted on compulsions. The court acknowledged that a LAD claim for conduct that occurred on a school bus may be permissible in a school setting but only under the right circumstances. The trial court further held that the “LAD was not intended to stretch to situations such as those present in this case where there is no discrimination and the bus aide would have abused any child on the bus.” The parents entered into settlement agreements resolving the negligence claim, but appealed the dismissal of the LAD claims to the Appellate Division.
The Appellate Division recognized that the LAD protects all persons including minors, that a school bus is “a place for public accommodation,” and that the LAD claim may be based on conduct that violates other statutes, including criminal statutes. However, the Appellate Division disagreed that the LAD automatically extends to a criminal sexual assault committed by a confirmed predator, regardless of the victim’s gender. The discrimination must be “because of” a protected characteristic, and in this case, the bus aide’s actions were the result of his pedophilia directed to all children.
The Appellate Division affirmed the trial court’s decision and noted that the LAD was simply not intended to provide a civil remedy for child sex abuse committed by pedophiles and where the victim failed to demonstrate that the conduct would not have occurred but for the student’s protected characteristic.
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