Students

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.

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.

You may recall that in May 2016, the U.S. Departments of Education and Justice issued a Dear Colleague Letter addressing the rights of transgender students and then rescinded it less than a year later in February 2017. The New Jersey Department of Education (“NJDOE”) took matters into its own hands and issued a guidance document to school districts regarding transgender students on September 27, 2018. The purpose of the guidance document is to assist in creating an inclusive environment for transgender and gender nonconforming students and to ensure that these students receive equal educational opportunities.

The NJDOE advises that a school district must accept a student’s gender identity. A student is not required to demonstrate any medical diagnosis or treatment. Similarly, a student is not required to obtain a legal name change. The school district should refer to the student by the student’s preferred name and pronoun.

Further, parental consent is not required for a student to assert a gender identity. Notably, the NJDOE advises that a school district does not have an affirmative duty to notify the parent regarding the student’s gender identity or expression.

With regard to confidentiality and privacy, the NJDOE reminds school districts of such obligations under the Family Educational Rights and Privacy Act (“FERPA”), N.J.S.A. 18A, and N.J.A.C. 6A. The NJDOE further advises that a student’s transgender status must be kept confidential except for in narrow circumstances permitted by law, such as to protect the health and safety of a student, during the course of an harassment, intimidation, and bullying investigation, or to a school official with a legitimate educational interest.

The NJDOE recommends that once a student expresses a preference to be called a name different than the student’s birth name, the student’s records containing the birth name should be kept in a separate, confidential file. Unless directed otherwise by the student, all other student records, including attendance records, transcripts, individualized education plans, etc., should be updated with the student’s chosen name and gender pronoun.

With respect to gender-segregated classes or athletic activities, students must be permitted to participate in such activities consistent with their gender identity. Students must have access to restrooms, locker rooms, and changing facilities in accordance with their gender identity. A transgender student who feels uncomfortable using a sex-segregated restroom should be provided with a safe and adequate alternative, such as a unisex restroom or the nurse’s restroom. For those non-transgender students who feel uncomfortable, schools should should provide them with a similar alternative.

The NJDOE advises that school districts must develop and update their policies and procedures to ensure a safe and supportive learning environment free from discrimination and harassment for transgender and gender nonconforming students. The NJDOE also recommends that social and emotional learning concepts be incorporated into school culture and curricula.

The complete guidance document from the NJDOE can be found here.

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

It is almost hard to believe we are now in the seventh school year since the New Jersey Anti-Bullying Bill of Rights Act (“ABBRA”) took effect.  At the time of the statute’s passage on January 5, 2011, many speculated that the wave of investigations into harassment, intimidation, and bullying (“HIB”) that were soon to be conducted in high numbers in the early years of the statute’s implementation would also be accompanied by a large and continuous wave of HIB litigation.  Some even opined that the law would spawn a new cottage industry of attorneys specializing in suing school districts over allegations of HIB, similar to the large volume of special education litigation, further draining already underfunded public schools of precious resources.  Now, seven years on, it seems safe to say that this concern has not materialized.

So what has been the effect of the ABBRA on the litigation environment for public school districts?  While HIB cases do occur on a regular basis, their frequency and degree of litigiousness do not generally approach the level of litigation in some other areas affecting the schools, such as special education, as those of us who have been representing public schools since the enactment of the statute can attest.  Each month, incidents of HIB are reported to boards of education in nearly every public school district in the State, whether determined to be founded or unfounded, as a result of the statute’s investigatory process.  In the vast majority of these cases, parents accept the investigation findings and decline to pursue the matter any further.

There are several reasons why this is true.  First, as in all cases, standard of review is key.  In the first several years of HIB jurisprudence, the early case law made it clear that the same deferential standard of review applied to all other discretionary actions of boards of education, including student disciplinary matters, would be applied to the review of a board’s determination on HIB matters.  In order to overturn a board’s finding on the substantive issue of whether or not any given incident falls within the statutory definition of HIB, an administrative law judge (“ALJ”) must conclude that the board’s determination was “arbitrary, capricious, or unreasonable.”  This is a deferential standard of review, which the Commissioner has adopted in the context of HIB cases.  Its continued application has likely given pause to potential litigants in assessing their chances of realistically getting an ALJ or the Commissioner of Education to overturn the collective judgment of their local officials on the school board concerning matters within their purview in overseeing the schools.

Second, in enacting the ABBRA, the Legislature wisely chose not to include a fee-shifting provision in the statute.  As a result, there is no mechanism to enable parents’ attorneys to build a practice solely by targeting cases of HIB in the public schools, as even victorious litigants pursuing HIB claims will be responsible for their own legal fees from administrative proceedings involving HIB matters.  Yet, attorneys continue to find creative ways to utilize the HIB statute to serve litigation ends for claims being pursued under other statutes that do provide for fee-shifting.  Two common examples are special education claims under the Individuals with Disabilities Education Act (“IDEA”) and claims under the New Jersey Law Against Discrimination (“NJLAD”), both of which contain fee-shifting provisions.

Many school districts have encountered parents who appear to be pursuing allegations of HIB involving their child solely for purposes of attempting to leverage their position in what is, in actuality, a special education dispute.  For example, it is not uncommon for a special education parent to pursue allegations of HIB as a means of arguing that the in-district program their child is attending is inappropriate for the child, because it cannot be made safe, and an out-of-district placement is therefore warranted.  In other cases, parents may be contemplating filing a civil suit in Superior Court under the NJLAD, seeking monetary damages on the basis of alleged inaction by the school district in response to their reports of HIB involving a child in a protected class.  In those situations, the parents may have already retained counsel and may actually be hoping that the district mishandles the HIB investigation in order to build a stronger factual predicate for their NJLAD suit.

In either scenario, strict adherence to the investigatory requirements of the ABBRA is the best shield the district can use to protect itself from potential liability.  Where a district is able to show that it appropriately investigated HIB allegations, reached a reasonable determination as to whether the conduct constituted HIB, and the matter was handled appropriately in terms of effectuating discipline or other consequences, the district will have laid a solid foundation for defending not only its HIB determination, but other potential related litigation.  Occasionally, parents will later file for due process or initiate a civil suit over HIB matters that they did not challenge through the administrative appeal process before the Commissioner, or even appeal to the board of education level.  Where this is the case, ALJs have recognized that a parents’ lack of pursuit of HIB charges before the Commissioner can undermine the genuineness of later attempts to reframe their HIB claims under another statute that provides for fee-shifting.

On December 27, 2017, the New Jersey Appellate Division affirmed the Commissioner of Education’s determination in T.L. o/b/o A.B. v. Union Township Board of Education that a parent and her child were not domiciled within the Union Township School District for two school years and therefore her child was not entitled to a free public education in that district. As a result, the parent was ordered to reimburse the Union Township Board of Education (“Board”) for the cost of the child’s education for that time period.

The case involved parent T.L. and her child A.B. For the 2014-2015 and 2015-2016 school years, T.L. enrolled A.B. in the Union Township School District using A.B.’s grandmother’s house in Union Township as their residence. Meanwhile, T.L. owned a home in Hillside, which is in a different school district. T.L. claimed that she used the Hillside home for investment purposes. However, she never actually rented it. In October 2014, during a school lesson, A.B. told her teacher that she is not supposed to talk about her house and she is supposed to say that her grandmother’s house in Union Township is her house.

The teacher reported the potential residency issue. Consequently, the Board initiated an investigation. Surveillance revealed T.L. leaving the Hillside home in the morning with A.B. and driving her to school in Union Township. In contrast, T.L. was not seen leaving the Union Township address.

The Board then notified T.L. that A.B. was not properly domiciled within Union Township and was ineligible to attend school there free of charge. As a result, T.L. sought a hearing before the Board, at which time she showed her driver’s license, car registration, credit union statement, Macy’s store credit card, medical bills, voter registration, and postage from her pharmacy all bearing the Union Township address. The Board committee hearing the matter directed investigators to inspect both of the homes to gather additional information as to A.B.’s domicile. Those inspections were inconclusive. The Board ultimately found that T.L. did not establish her and A.B.’s actual residence in Union Township.

T.L. then appealed the Board’s decision. When the matter was heard before an Administrative Law Judge (“ALJ”), T.L. claimed that the Board’s surveillance was flawed insofar that she was hosting guests at the Hillside residence on the dates of observation and further that the investigator did not observe her vehicle leaving the Hillside home. However, T.L. did not provide any credible evidence to support these assertions. Further, a neighbor of the Union Township home testified that she never saw A.B. and T.L. live at that house. The ALJ also rejected T.L.’s argument that she had various documents bearing the Union Township address because she never actually established that she assisted with paying utilities there. In short, the ALJ upheld the Board’s determination, which was further affirmed by the Commissioner.

T.L. then appealed the Commissioner’s decision to the Appellate Division, which did not disturb the lower decisions because they were not arbitrary, capricious, or unreasonable. Specifically, the Appellate Division found the surveillance by the Board to be compelling of the fact that T.L. and A.B. did not reside at the Union Township address on a continuous and permanent basis – contrary to the requirements of domicile. Further, the Appellate Division relied on A.B.’s own statements to her teacher that the Union Township house was not her home. Due to the lack of domicile, the parent was required to pay tuition to the Board for the two school years that the child was ineligible to attend school within Union Township free of charge.

On November 15, 2017, the New Jersey State Interscholastic Athletic Association (“NJSIAA”) announced changes to its policy affecting transgender student athletes. Under the new policy, the NJSIAA simply defines a transgender student as a student whose gender identity differs from the student’s sex assigned at birth.

The new policy allows transgender students to participate in sports in accordance with either their birth sex or their gender identity, but not both. The old policy required documented proof of a change in gender identity, such as a physician’s certification. In contrast, the revised policy does not require medical consultation.

A school may appeal the transgender student athlete’s eligibility if it believes the student’s participation would adversely affect competition or safety. The Eligibility Appeals Committee of the NJSIAA will hear such an appeal through a confidential process. However, such an appeal will not address a challenge to the school’s determination of the student’s sex-assignment.

The new policy also allows the NJSIAA to consider a transgender student’s use of a banned substance as a medical reason for a positive drug test if the use is for the purposes of hormone therapy.

Finally, the NJSIAA’s new policy only applies to students who have declared their transgender status. For those transgender student athletes who later no longer identify as transgender, the new policy can no longer apply to them.

You can read the full NJSIAA policy here.

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

A District Court in New Hampshire recently ruled that the parents of an 8-year-old boy who uses a service animal could not bring forth claims under Section 504 of the Rehabilitation Act (“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”) against a school district because the parents failed to first exhaust their administrative remedies under the Individuals with Disabilities in Education Act (“IDEA”).

In A.R. v. Sch. Admin. Unit #23, No. 15-CV-152-SM, 2017 WL 4621587 (D.N.H. Oct. 12, 2017), the student in question suffered from a seizure disorder, developmental delay, hypotonia, hearing loss, dysphagia, and cortical blindness. A.R. was eligible for special education and related services under the IDEA and received an individualized education plan (“IEP”). Through the IEP, A.R. received services from a special education teacher, teacher of the deaf, and teacher of the visually impaired. He also received speech therapy, physical therapy, and occupational therapy. Moreover, he received the services of a one-to-one aide.

The parents wished to have A.R. accompanied to school by Carina, a multipurpose service animal, who is trained to detect seizures by licking A.R.’s face. Although Carina was trained to make it through the school day without needing to be walked, eat, or taken outside to go to the bathroom, she still required a service animal handler during the school day, as A.R.’s cognitive, sensory and physical limitations prevented him from acting as Carina’s handler. On this basis, A.R.’s parents requested that the school district hire, train, and pay for a handler for Carina. When the school district refused, the parents filed a federal lawsuit against the district alleging that the district discriminated against their son by failing to provide support services that were needed for the service animal to attend school. The parents did not first initiate an administrative due process petition under the IDEA against the school district.

The District Court Judge in this case based his decision on the recent, and highly publicized, United States Supreme Court ruling of Fry v. Napoleon Community Schools, holding that the IDEA’s exhaustion requirement applies to all non-IDEA claims that involve an alleged denial of a free and appropriate public education (“FAPE”). Although the parents were not challenging A.R.’s educational services, they were challenging the district’s obligation to provide support services required for Carina to attend school with A.R. The Judge stated:

Here, however, plaintiffs are not complaining that the District is discriminating against A.R. on the basis of his disability by refusing him access when accompanied by his service dog. Instead, the crux of plaintiffs’ complaint is that the District discriminates against A.R. by refusing to pay for and provide a handler for Carina. So, plaintiffs are not merely asking that the District allow A.R. to be accompanied by his service dog while he is at school. Instead, plaintiffs want the District to hire, train and pay for a handler for Carina.

Because the parents were actually challenging the school district’s alleged failure to provide additional support services in hiring, training, and paying for a handler for the service animal, the Judge determined that their Section 504 and Title II claims sought relief from an alleged denial of FAPE to A.R. Therefore, they were required to first exhaust their administrative remedies under the IDEA prior to initiating their lawsuit for disability discrimination.

For more information regarding service animals in schools and exhaustion of administrative remedies, please see our previous articles:

• U.S. Supreme Court Rules Exhaustion of Administrative Remedies Not Required in Non-FAPE Cases
• What You Need to Know About Service Animals in Schools – Part 1
• What You Need to Know About Service Animals in Schools – Part 2