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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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N.J. Supreme Court Reverses; Refuses to Allow “Tyranny of Labels” to Compromise Analysis in Tenure Case

Last week, the New Jersey Supreme Court decided a teacher tenure case which it warned served as a cautionary tale that “demonstrates the ability of labels to cloud an analysis.”  Melnyk v. Bd. of Educ. of Delsea Reg’l High Sch. Dist., 241 N.J. 31 (2020).  The Delsea Regional School District (“District”) had employed the petitioner, Paula Melnyk, as a tenured special education teacher since 1991.  In 2002, the district began also employing Melnyk to work evenings as a teacher in its after-hours alternative program, in addition to her position as a special education teacher during the regular school day.  Melnyk held the position as a teacher in the alternative program every year from 2002 through the end of the 2014-2015 school year, except for the 2009-2010 school year.  In August 2014, the District decided to hire another, non-tenured teacher to teach the after-school program hours previously assigned to Melnyk.

Melnyk filed a petition of appeal, asserting that the District could not reduce her hours without violating her tenure rights to the teaching position in the alternative program.  The District accepted that Melnyk held tenure in her regular position during the school day, but argued that she did not acquire tenure as a teacher in the alternative program because it was an “extracurricular position” which did not require additional certification beyond what was required by Melnyk’s normal position as a special education teacher.  An administrative law judge (“ALJ”) accepted the District’s argument and ruled that Melnyk had not acquired tenure in the alternative school position.  The Commissioner of Education adopted the ALJ’s initial decision, and the Appellate Division affirmed. 

On further appeal, however, the New Jersey Supreme Court reversed, holding that the ALJ, Commissioner, and Appellate Division had all misconstrued the applicable law in accepting the District’s argument.  The Supreme Court held that the case should have been easily decided through a simple application of its earlier precedent in Spiewak v. Summit Bd. of Educ., 90 N.J. 63, 77 (1982).  Under Spiewak, Melnyk should have been entitled to tenure in the alternative program teaching position, because “staff members who work in positions for which a certificate is required, who hold valid certificates, and who have worked the requisite number of years, are eligible for tenure unless they come within the explicit exceptions in N.J.S.A. 18A:28-5 or related statutes such as N.J.S.A. 18A:16-1.1.”  Id. at 81. 

In this case, however, the Supreme Court noted that this “clear analysis was sidetracked by labeling Melnyk’s position in the [alternative] program as ‘extracurricular’ and . . . . imputing a requirement particular to traditional extracurricular activities to the program, namely that Melnyk could not acquire tenure rights to her position . . . unless that program required her to hold an additional instructional certification than that which she already held for her full-time regular education position.”  The Court rejected the imposition of this additional requirement, reasoning:  “There can be no tyranny of labels permitted in this analysis.”  Instead, the Court found that the requirements of the tenure statutes, as interpreted by Spiewak, were clearly met under the undisputed facts.  The teacher was entitled to tenure in the additional position, since it required a teaching certificate and she had worked in the position for the requisite number of years set forth in the tenure statute. 

Both parties had conceded before the Commissioner that a teacher serving exclusively in the alternative program position would have acquired tenure.  Since the alternative program position required a teaching certificate, there was no basis for the District to have treated Melnyk differently simply because she was already employed in a separate teaching position, for which she had already acquired tenure, which required the same instructional certification as the additional position.  The Supreme Court refused to allow the District to avoid Spiewak’s application by applying the label of “extracurricular” to the position, noting that school districts are required by State regulations to offer their students access to such alternative programs, either through their own district or through alternative programs outside the district, either of which must comply with State regulatory standards.

Court Affirms Dismissal of Parent’s Suit Challenging School’s Communication Plan Setting Reasonable Limits on Father’s Constant, Aggressive E-mails

In the world of special education, parents come in all shapes and sizes in terms of their mode of interaction with the child study team and school personnel.  Some parents of special needs children are cordial, while others are friendly and appreciative.  Some are matter-of-fact, while others can be much more emotional or animated.  Special education parents come with varying degrees of how engaged they are or wish to be in the process of planning and communicating with the school district child study team.  For the thousands of child study team members around the country who serve as case managers, working every day to implement the mandate of the IDEA and follow the complex set of procedural and substantive legal requirements that it implements for the education of special needs children, most can think of one or two families on their case load of students who are, well, a little “demanding” for lack of a better word, in terms of their desired level of communication with the school district.

So what happens when a child study team encounters a parent who sends e-mails every day or multiple times a day, expecting an immediate response from the case manager?  What happens when the level of parental communication is so excessive in its frequency or level of detail that it becomes burdensome for the child study team to constantly have to respond?  What about parents who send derogatory, harassing, hostile, or intimidating e-mails, letters, or phone calls to the team?

In a recent case, issued on January 17, 2020, the Ninth Circuit Court of Appeals affirmed the dismissal of a lawsuit filed by a parent against a Washington school district which had put in place a communication plan that limited his communication with school district personnel in an effort to curtail the parent’s habit of constantly sending time-consuming and intimidating e-mails.  L.F. ex rel. K.S.F. & K.S.F. v. Lake Washington Sch. Dist. #414, No. 18-35792, 120 L.R.P. 1811 (9th Cir. 2020).  In L.F., the father of two daughters with anxiety and behavioral disorders had developed “an unproductive communication pattern” with the school guidance staff on his daughter’s Section 504 team, “sending incessant e-mails to staff accusing them of wrongdoing; making presumptuous demands; leveling demeaning insults; . . . and in face-to-face interactions, acting in an aggressive, hostile, and intimidating manner.”  The district employees complained that the father’s e-mails were extraordinarily time-consuming and made them feel threatened and intimidated.  As a result, the team developed a “communication plan” under which the child study team would no longer respond to the father’s constant e-mails about substantive issues concerning his daughter’s Section 504 plan.  Instead, under the plan, the father would have the opportunity to meet with district administrators every other week to discuss any parental concerns.  Later, after the father violated the plan by sending additional e-mails, the school district modified the plan to further limit the meetings with administrators from bi-weekly to once per month.

The father brought suit, asserting Section 1983 claims, arguing that the school district’s communication plan violated his First Amendment rights to free speech and constituted retaliation under Section 504 for his advocacy concerning his daughters’ special needs.  In affirming the grant of summary decision in favor of the school district, the Ninth Circuit held that no First Amendment violation occurred, because “the communication plan regulated the District’s conduct, not ‘the parent’s.]”  The court found that the plan was reasonable in light of the parent’s repeated e-mails to school staff.  Further, the three-judge panel noted that, even if the plan had restricted the parent’s free speech (which it did not), it still would not violate his First Amendment rights.  The court explained that the school was not an “open public forum,” but rather, a “limited public forum” in which the school district could set reasonable “time, place, and manner” restrictions on the parent’s communications with district staff.  Importantly, the bi-weekly meetings with administration permitted the parent an opportunity to meaningfully participate in the process and express parental concerns.

In sum, in cases where extreme, excessive, or offensive communications from parents become a burden on the child study team or district administration, school districts can put in place reasonable restrictions on parental communication.  The team should take care to design a plan that outlines the method of communication for the team in responding to excessive parental communication, meaning implementing strategies to deal with excessive communication from the parent, rather than purporting to control or restrict the communication of the parent directly, which generally cannot be controlled.  Districts should use caution, however, to do so through the formal IEP or Section 504 meeting process, and to clearly set forth any restrictions or limitations in a written communication plan incorporated into the student’s IEP or Section 504 plan. 

In doing so, the school district should pay special attention to ensure there are adequate alternative avenues for the parent to communicate parental concerns in a non-burdensome manner.  So long as the plan is reasonable in light of the parent’s pattern of excessive or aggressive communication, and provides alternative methods and means of parental communication and participation, the district should be able to avoid liability or a finding that it has unreasonably impaired the parent’s ability to meaningfully participate in the process of discussing and planning for their child’s education.

USDOE and USHHS Issue Joint Guidance on Application of FERPA and HIPAA to Student Health Records

In December 2019, the U.S. Department of Education (“USDOE”) and U.S. Department of Health and Human Services (“USDHHS”) jointly issued a 26-page document, providing updated guidance on the application of the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, 34 C.F.R. Part 99, and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), see 45 C.F.R. Parts 160, 162, and 164 (the “HIPAA Rules”), and their application to student health records.  The updated guidance provides a basic overview of each of the two federal statutes, as well as 27 frequently asked questions (“FAQs”).  The new guidance document will serve as a useful tool for school districts and related service providers as a quick reference guide to the legal requirements and applicability of the FERPA and HIPAA statutes in various sets of circumstances.

For lawyers practicing in the area of school law, advising school districts and educational service providers of students’ rights under FERPA is an ongoing element of practice.  In general, FERPA is a federal law that provides various protections for the privacy of students’ “education records,” including the right of parents, legal guardians, and adult students to access their or their child’s education records, the right to seek to have these records amended, and the right to provide consent for the disclosure of personally identifiable information (“PII”) from these records, unless an exception to consent applies.  The statute contains a number of exceptions permitting disclosure absent parental consent, which are generally mirrored in New Jersey by state statutes and regulations (see N.J.A.C. 6A:32-7.1 et seq.).  

However, FERPA only applies to educational agencies and institutions that receive federal funds under any program administered by the U.S. Department of Education, including but not limited to public school districts and charter schools.  The term “educational agency or institution” generally refers to public elementary and secondary schools, school districts, and postsecondary institutions, including medical and other professional schools.  Private and religious schools at the elementary and secondary levels generally do not receive funds from the USDOE and are, therefore, not subject to FERPA.

The HIPAA statute, on the other hand, was enacted in 1996 in order to improve efficiency and establish a national standard for protecting the privacy and security of individually identifiable health information.  HIPAA applies to “covered entities,” which are health plans, health care clearinghouses, and health care providers that transmit health information in electronic form in connection with covered transactions.  See 45 C.F.R. § 160.103.  “Health care providers” include institutional providers of health or medical services, such as hospitals, as well as non-institutional providers, such as physicians, dentists, and other practitioners, along with any other person or organization that furnishes, bills, or is paid for health care in the normal course of business. “Covered transactions” are those for which the USDHHS has adopted a standard, such as health care claims submitted to a health plan.  Once a health care provider becomes a covered entity, the HIPAA Privacy Rule applies and requires the protection of individuals’ health records and other personal health information the entities maintain or transmit, known as protected health information (PHI), by requiring appropriate safeguards to protect privacy and setting limits and conditions on the uses and disclosures that may be made of such information without patient authorization.  The rule also gives patients certain rights with respect to their health information, including rights to examine and obtain a copy of their health records, and to request corrections.  Where the HIPAA Privacy Rule applies, it permits covered entities to disclose PHI without patient authorization in certain circumstances, including emergency or other situations.

While FERPA generally applies to all public school districts and charter schools, as most or all are recipients of federal funds, the new guidance helps provide clarity on those situations in which the HIPAA Privacy Rule may apply to educational institutions and intersect with FERPA.  In most cases, HIPAA does not apply to an elementary or secondary school for one of two reasons:  (1) either the school is not a HIPAA covered entity, or (2) the school is a HIPAA covered entity but maintains health information only on student records that are also “education records” under FERPA, and, therefore, are expressly not PHI covered by the HIPAA Privacy Rule.  However, the guidance explains that, in some circumstances, a private school would be required to comply with the HIPAA Privacy Rule when it is a HIPAA covered entity because it does not receive federal funds from USDOE.  These circumstances, will generally fall into one of the following categories:

  • The school is not a HIPAA covered entity. The HIPAA Privacy Rule only applies to health plans, health care clearinghouses, and those health care providers that transmit health information electronically in connection with certain administrative and financial transactions (“covered transactions”). See 45 C.F.R. § 160.102.  Thus, even though a school employs school nurses, physicians, psychologists, or other health care providers, the school is not generally a HIPAA covered entity unless the providers engage in any of the covered transactions defined by regulation, such as billing a health plan electronically for their services.  According to the new guidance, “It is expected that most elementary and secondary schools fall into this category.”
  • The school is a HIPAA covered entity but does not have PHI.  Even if a school is a covered entity and must comply with the HIPAA Transactions and Code Sets Rules, the school would not be required to comply with the HIPAA Privacy Rule if it only maintains health information in FERPA “education records.”  For example, a public high school might employ a health care provider that bills Medicaid electronically for services provided to a student under the Individuals with Disabilities Education Act (“IDEA”).  The school is a HIPAA covered entity because it engages in one of the covered transactions electronically, and, therefore, would be subject to the HIPAA transaction standard requirements. However, if the school provider maintains health information only in “education records” under FERPA, the school is not required to comply with the HIPAA Privacy Rule because the Privacy Rule explicitly excludes FERPA “education records.” See 45 CFR § 160.103.  Importantly, although the HIPAA Privacy Rule does not apply, FERPA’s and the IDEA’s privacy requirements do apply, including the requirement to obtain prior written parent or eligible student consent to disclose to Medicaid billing information about a service provided to a student.
  • The school is a HIPAA covered entity and is not subject to FERPA.  Schools that are covered entities and are not subject to FERPA must comply with both the HIPAA transaction requirements and the HIPAA Privacy, Security, Breach Notification, and Enforcement Rules regarding any individually identifiable health information the school has about students and others to whom it provides health care. For example, if a private elementary or secondary school not subject to FERPA employs a physician who bills a health plan electronically for the care provided to students (thereby making the school a “covered entity”), the school must comply with the HIPAA Rules regarding the individually identifiable health information of its patients.
  • Certain private school placements. Where a student is placed in a private school for the provision of Individualized Education Program (IEP) services on behalf of a school or school district subject to FERPA, the education records of the privately placed student maintained by the private school are subject both to FERPA and to the confidentiality requirements under the IDEA, which incorporate the provisions of FERPA, and not the HIPAA Privacy Rule.  USDOE is in the process of preparing a Notice of Proposed Rulemaking to amend the FERPA regulations to add this provision and will provide an opportunity for the public to comment on this proposed amendment.

The guidance continues with an explanation of 27 FAQs concerning the applicability of FERPA and HIPAA to various types of educational institutions.  The full text of the new guidance can be found at the following link: https://bit.ly/35LDctO

N.J. District Court Issues Post-Janus Decision on WDEA

On May 18, 2018, the New Jersey Governor signed into law the Workplace Democracy Enhancement Act (“WDEA”), which allows union employees to withdraw from the union and cease paying dues upon notice to the employer during the 10 days following each anniversary date of their employment. On June 27, 2018, the United States Supreme Court issued its decision in Janus, holding that public-sector unions may no longer extract agency fees from non-consenting employees. On December 27, 2019, the U.S. District Court for the District of New Jersey issued a decision in Thulen v. AFSCME regarding union members’ argument that the First Amendment gives such employees a right to withdraw from the union and cease paying dues at any time, without restriction.

Many of us have been hoping that the Court would issue a substantive decision on whether the “10-day” window under the WDEA is constitutional in light of Janus. Instead, the Court dismissed the case on the basis that the union members failed to state a valid claim of relief. Plaintiffs in this case were three building inspectors for the Township of Lakewood, New Jersey who were current or former members of the union. When they began their positions, they signed union dues authorization cards. They alleged that after Janus, they wished to cease paying union dues but were prohibited from doing because of the WDEA. They argued that the revocation requirements under the WDEA unconstitutionally restrict employees’ First Amendment rights.

In dismissing the Plaintiff’s claims, the Court emphasized that it previously held that Janus does not allow employees, who voluntarily signed union dues authorizations, to override fair and reasonable contractual commitments. Here, the Court found that the Plaintiffs failed to allege (1) any opt-out restrictions in their union dues authorization forms and (2) that they tried to withdraw from the union and had a request denied. As a result, Court could not find that the WDEA was enforced against Plaintiffs and dismissed the case.

Governor to Sign Bill to Ban Hair Discrimination

New Jersey bill entitled Create a Respectful and Open Workspace for Natural Hair Act (“CROWN Act”) was passed by the Senate on December 16, 2019 and approved by the Assembly on December 19, 2019. The CROWN Act would prohibit discrimination on the basis of hairstyle, type, or texture, which are traits historically associated with race. This bill, which further addresses discrimination under the New Jersey Law Against Discrimination (“NJLAD”), will head to the Governor for signature.

The NJLAD, which applies to schools and work places, would be amended to specifically define “race” to include “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyle.” The CROWN Act defines “protective hair styles” to include “braids, locks, and twists.”

The CROWN Act follows similar legislation in California and New York banning hair discrimination and was prompted, in part, by an incident involving a New Jersey high school wrestler having to choose whether to shave his dreadlocks or forfeit a wrestling match.

The text of the proposed law can be found here.

Third Circuit Clarifies Law on Independent Evaluation Requests & Need for Disagreement with District Eval

Occasionally, school district child study teams (“CSTs”) are faced with special education parents who are resistant to allowing the CST to evaluate their child, yet demand independent evaluations from an outside evaluator at the school district’s expense.  In such circumstances, districts were often faced with a dilemma – either acquiesce to such demands, or file for due process themselves and incur legal fees to resist such requests, or deny the parent’s request without filing for due process and risk an Administrative Law Judge (“ALJ”) finding that the district committed a procedural violation.  This is because previous decisions of the Office of Administrative Law have rendered conflicting opinions from ALJs on the proper interpretation of N.J.A.C. 6A:14-2.5(c) and the important issues of (1) whether a parent could request an independent educational evaluation (“IEE”) at any time, or only in response to a disagreement with an evaluation or reevaluation conducted by the District, and (2) whether it was necessary for the district to file for due process to resist an IEE request from a parent even when the parent had no disagreement with a district-conducted evaluation.  In a recent decision issued on December 13, 2019, the Third Circuit has now clarified the law on this important issue.  M.S. & S.S. o/b/o H.S. v. Hillsborough Twp. Pub. Sch. Dist., No. 19-1510 (3d Cir. Dec. 13, 2019).

Under the Individuals with Disabilities Education Act (“IDEA”), school districts are required to evaluate special education students in all areas of suspected disability, both at the time the child study team (“CST”) initially considers whether the student is eligible for services and on an ongoing basis with triennial reevaluations every three years, or sooner if circumstances warrant, unless the parent and CST decide that such reevaluations are unnecessary and mutually agree to waive them.  Federal regulations provide a mechanism for a parent to obtain an IEE from an evaluator not employed by the school, at the expense of the public, “if the parent disagrees with an evaluation obtained by the public agency,” unless the school district requests a due process hearing “to show that its evaluation is appropriate.”  34 C.F.R. 300.502(b).  In New Jersey, if a parent makes a written request for an IEE “[u]pon completion of an initial evaluation or reevaluation” provided by the school district, the district must provide the IEE at no cost to the parent unless it files for due process within 20 calendar days to show the appropriateness of its own evaluation with which the parent disagrees.  N.J.A.C. 6A:14-2.5(c).  Parents are entitled to only one IEE each time the district performs an evaluation with which they disagree, although the request for an IEE can include requests for multiple different types of assessments. 

In Hillsborough, the parents initially signed consent to a reevaluation plan to permit reevaluations of their son by the CST.  Yet, before it could be conducted, the parents rescinded their consent to the district’s reevaluation, and instead they made a written request for an IEE at district expense.  The Hillsborough CST denied the parents’ request, explaining that their entitlement to request an IEE at public expense hinged on their having a disagreement with an evaluation or reevaluation conducted by the district.  The district further denied that it was obligated to file for due process within 20 days of the parents’ written request under N.J.A.C. 6A:14-2.5(c).  The parents then filed for due process and sought reimbursement for the IEE, which they had obtained at their own expense.

The ALJ rendered an initial decision on the issue and ordered Hillsborough to reimburse the parents for the cost of the IEE.  On January 31, 2019, the U.S. District Court for the District of New Jersey reversed the ALJ and issued a decision clarifying the circumstances under which parents can request independent educational evaluations (“IEEs”) from local school districts at the expense of the public and how a district is obligated to respond.  See S.S. & M.S. o/b/o H.S. v. Hillsborough Twp. Pub. Sch. Dist., 73 I.D.E.L.R. 210, 119 LRP 2568, No. 3:18-cv-2335 (D.N.J. January 31, 2019).  The federal district court held that special education parents are not entitled to request an IEE at public expense when the District has not yet completed an evaluation or reevaluation of the student with which the parent disagrees, or where the parents refuse to allow the school district to evaluate the child.  Further, the court held that, “when an IEE request is invalid, a school district is not required to file for due process within twenty days.”

On December 13, 2019, the Third Circuit affirmed, stating:  “We agree that a disputed evaluation is a requirement for a publicly funded IEE.”  The circuit court held:  “Simply stated, only a disputed public evaluation can trigger a right for a publicly funded IEE.”  Distinguishing prior case law, the court held that:  “Neither our prior decision, nor, more importantly, the text of the statute, can be read to permit reimbursement without ever disagreeing with the prior evaluation.”  The Third Circuit also affirmed that school districts need not needlessly expend legal fees by filing for due process, as N.J.A.C. 6A:14-2.5(c) only requires a school district to file for due process within 20 days of a written request for an IEE when the parent has a disagreement with a public evaluation conducted by the district. 

The decision provides much needed guidance to school districts, parents, and ALJs on these important issues by clarifying that the federal and state regulations on IEEs should be interpreted as written to require a disagreement with a district’s evaluation before a parent may validly request an IEE at public expense.  In doing so, the decision should help alleviate a long-standing loophole in the regulatory scheme, through which parents had previously been able to force school districts into the untenable position of having to either grant IEEs to parents who had no right to request them, expend fees by filing for due process to deny the IEE request, or risk an adverse result from an ALJ who might otherwise have simply determined that the parents were entitled to request IEEs at any time, even in cases where the district was never given the opportunity to evaluate the child.

Commissioner of Education Upholds Finding of HIB for Comments Related to Physical Strength

In a case successfully defended by Sanu Dev, Esq., the Hainesport Township Board of Education’s (“Board”) determination of harassment, intimidation, and bullying (“HIB”) was upheld by the New Jersey Commissioner of Education (“Commissioner”) on June 19, 2019. In the case captioned M.S. and N.S. o/b/o J.S. v. Hainesport Township Board of Education, the parents of J.S. appealed the Board’s decision finding that J.S. violated the Anti-Bullying Bill of Rights Act (“ABBRA”) and committed an act of HIB when J.S. slammed another student’s Chromebook, pulled on his earbuds, called him “weakling,” and commented on the student’s athletic ability, using the phrase, “you suck.”

As a result of J.S.’s conduct, the Board upheld the administration’s recommendation that J.S. receive a one-day, in-school suspension and his schedule be adjusted to limit interaction with the other student. J.S.’s parents appealed the Board’s determination, which was initially heard by an Administrative Law Judge (“ALJ”). Thereafter, the Commissioner reviewed the matter. The ALJ and Commissioner both agreed that the Board did not act in an arbitrary, capricious, or unreasonable manner when it determined that J.S.’s conduct met the criteria for HIB: the conduct was motivated by the other student’s distinguishing characteristic of being weak and bad at sports; the conduct disrupted or interfered with the orderly operations of the school or the rights of other students; and the conduct made the other student feel embarrassed.

While J.S.’s parents argued that the situation was conflict between the students rather than HIB, this argument was rejected. The evidence did not suggest a “back and forth” of taunting between J.S. and the other student.

Upcoming Seminar: School Law – Social Media and Apps, Cyberbullying, Privacy, and Other Technology

On Wednesday, December 11, 2019, Sanmathi (Sanu) Dev, Esq. will be presenting at the National Business Institute’s seminar entitled “Social Media and Apps, Cyberbullying, Privacy, and Other Technology.” Her presentation will focus on First Amendment issues and disciplining students in the age of social media. The seminar will be held in Cherry Hill, New Jersey.

Lunch Debt Debacle – Part II

By: Lauren E. Tedesco, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Strengthening policies and procedures for outstanding lunch debt is one of the most important steps a school district can take in order to minimize the overall outstanding debt. 

In addition to the statutory notice provisions to parents/guardians discussed in Part I of this article series, school districts should also ensure that parents/guardians are aware of the National School Lunch Program, which provides a free or reduced price lunch to children from households meeting criteria for eligibility.  Free/Reduced Lunch applications can be provided to parents/guardians and submitted at any time during the school year.  These applications take into account whether the financial circumstances of the family have changed to warrant a free or discounted meal rate.   

After providing written notice to parents/guardians and if the parents/guardians still have not made payment on the debt, I recommend school officials request a meeting with the parents/guardians to resolve the matter.  At this meeting, payment of the debt in full or potential payment plans can be discussed and hopefully agreed upon.  

If the parents/guardians refuse to meet with school officials or the matter is unable to be resolved, school district officials can consult with the school district social worker regarding possible referral to the New Jersey Department of Children and Families, Division of Child Protection and Permanency.

It is also recommended for schools to create a folder for each individual student which can include: all correspondence and attempts to contact parents/guardians; payment plan details (if applicable); a copy of the Free/Reduced Lunch application; Food Service records, etc.

With respect to alternate meals for students whose accounts are in arrears, as explained in Part I, this practice is lawful and appropriate.  No student is being denied a meal and the school district is minimizing further debt.  If school districts feel that there is in fact stigmatization with respect to the alternate meal, they can decide whether to provide the regular meal to students whose accounts are in arrears. If they choose this option, school officials should continue to keep a detailed accounting of the meals and amounts charged while following through with all of the procedures for notice and attempts to recoup the debt as set forth above.

Lunch Debt Debacle – Part 1

By: Lauren E. Tedesco, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Amassing lunch debt within school districts is not a unique circumstance.  In fact, in our practice representing school districts it is a relatively common occurrence. 

Recently, a South Jersey school district came under scrutiny for proposing what has been dubbed the “Tuna Sandwich Policy” where a student whose lunch account is more than $10 in arrears would be provided a tuna sandwich for lunch as an alternate lunch in lieu of the lunch regularly provided and available.  Those who oppose the proposed policy argue that students who receive a tuna sandwich lunch will be stigmatized by their peers for their parents’ and/or guardians failures to pay their lunch account debt.

So what is the law in New Jersey in this regard?  Is there a law and if so, what does it require?  The answer is yes, there is a statutory provision on the issue which outlines the procedures a school district must take.  The provision, N.J.S.A. 18A:33-21, provides, that when a school district determines a student’s school breakfast or school lunch bill is in arrears, the district must contact the student’s parent or guardian and then provide them with 10 school days to pay the amount due.  If the student’s parent or guardian fails to pay the amount due at the end of the 10 school day period, the school district must again contact the student’s parent or guardian to notify of them that school breakfast or school lunch will not be served to the student beginning one week from the date of the second notice unless the payment is made in full.

The purpose of the statute is to ensure that students are not suddenly denied a school breakfast or school lunch without adequate notice to their parents and guardians of the debt and time to pay the amount owed.

As outlined above, the statute permits a student to be denied service of school breakfast or school lunch.  Although permitted, this is a route that most school districts do not take, nor is such recommended.  Hence, this is where alternate lunches come into play, so students are not denied meals and the district is minimizing further costs to their food service programs.

So what can we do moving forward? How can we harmonize the alleged stigmatization of alternate meals with lowering the overall lunch debt to the school district?  Please stay tuned for Part II of this article series.

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