Students

In an unpublished decision issued on May 4, 2017, the New Jersey Appellate Division affirmed the final agency decision of the Commissioner of Education (“Commissioner”) approving the send-receive relationship between the Seaside Park Board of Education (“Seaside Park”) and the Lavallette Board of Education (“Lavallette”). The decision captioned In the Matter of the Petition for Authorization to Enter into a Sending-Receiving Relationship with the Board of Education of the Borough of Lavallette, Ocean County allows Seaside Park to send its students to Lavallette while maintaining its existing send-receive agreement with the Toms River Regional Schools Board of Education (“Toms River”).

In 2009, Seaside Park entered into a send-receive agreement with Toms River to educate its K-6 students after Seaside Park closed its elementary school. In March 2015, Seaside Park initiated a petition with the Commissioner requesting it to enter into a second sending-receiving relationship – this time with Lavallette – while maintaining its existing agreement with Toms River. Seaside Park argued that the send-receive relationship with Lavallette would provide greater educational choice to its families. Seaside Park never sought to end its send-receive relationship with Toms River.

As part of its petition, Seaside Park submitted a comprehensive feasibility study, which concluded that such a dual sending-receiving relationship would not have a negative education, financial, or racial impact on the three school districts. None of the parties challenged the recommendations and conclusion of the feasibility study.

Toms River and Lavallette did not oppose Seaside Park’s petition. Importantly, Toms River notified the Commissioner that it would not oppose the petition. In addition, Lavallette passed a resolution stating its readiness to receive Seaside Park’s students. As there was no opposition, public comment was held pursuant to N.J.A.C. 6A: 3-6.1(b). Based on the feasibility study and public comment, the Commissioner approved Seaside Park’s petition in a final agency decision.

Thereafter, Toms River appealed the Commissioner’s decision to the Appellate Division. It argued that the Commissioner’s decision was unreasonable and contrary to statutory language and intent. Toms River also argued that the proposed send-receive relationship between Seaside Park and Lavallette improperly terminates its existing relationship with Seaside Park in violation of the law. In rejecting Toms River’s argument, the Appellate Division determined that the Commissioner’s decision was not arbitrary, capricious, or unreasonable because it was supported by substantial evidence – namely, the feasibility study, the parties’ positions, and public comments. The Court highlighted that Toms River raised no objection before the Commissioner. Furthermore, the Appellate Division reasoned that New Jersey law allows for dual send-receive agreements, such as the one proposed by Seaside Park, and Seaside Park did not terminate its agreement with Toms River.

In short, the Appellate Division upheld the Commissioner’s decision approving a dual sending-receiving relationship enabling Seaside Park to send its K-6 students to either the Lavallette or Toms River school districts to be educated.

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

In Part 1 of this series, we discussed what qualifies as a service animal and what types of inquiries a school district is permitted to make. Today, we will discuss the parameters by which a school district may exclude a service animal from school, the responsibility of caring and supervising the animal, allergy and/or fear considerations, and liability insurance.

Pursuant to 28 C.F.R. § 35.136 (b), once a school district permits the use of a service animal by a student with a disability, the service animal can only be removed from the premises under the following conditions: 1) the animal is out of control and the animal’s handler does not take effective action to control the animal, or (2) the animal is not housebroken. If school administration properly excludes the animal due to one of these triggering conditions, the school must still provide the student with a disability an opportunity to participate in the service, program, or activity without the service animal pursuant to 28 C.F.R. § 35.136 (c).

Often the question arises in terms of who is responsible for providing the care and supervision of the service animal. The student? The school district? A third party? Pursuant to 28 C.F.R. § 35.136 (e), a school district or other public entity is not responsible for the care and supervision of the animal. The handler of the service animal can be either the student with a disability or a third party who has been properly trained to handle the service animal. The parent can decide whether the student or a third party will be the handler. The only requirement is that the handler is properly trained to handle/care for the animal. Most often, the handler will be the student. However, factors for consideration are the student’s age and whether the student is able to effectively control and handle the service animal.

Another common question that arises is whether a school district can deny a service animal due to concerns over allergies or fear of dogs. In accordance with the Dep’t of Justice, Civil Rights Div., ADA Requirements, Service Animals, concerns over allergies or fear of dogs are not valid reasons to deny access to an individual utilizing a service animal under the ADA. In the event an individual with allergies or fear of dogs is in the same location as the individual utilizing a service animal, the Department of Justice has asserted that both individuals must be accommodated, which could mean assigning the two individuals to different classrooms or different locations/rooms within the facility.

Lastly, liability concerns arise with respect to service animals. What if the animal bites someone?  What if the animal causes damage to property? While New Jersey law does not specifically answer these inquiries, federal law and a recent district court case provide us with some guidance. Under 28 C.F.R. § 35.136(h), public entities are prohibited from asking or requiring an individual with a disability to pay a surcharge for their service animal. Therefore, a school district is unable to charge a student with a disability and/or the student’s parents a surcharge prior to admitting the service animal onto school premises.

A Florida district court in Alboniga v. Sch. Bd. of Broward County Fla., 87 F. Supp. 3d 1319 (S.D. Fla. 2015) found that a school district imposed an unreasonable surcharge when the school district’s policy required the student/parent to have and maintain liability insurance for the service animal. In Alboniga, the Southern District of Florida ruled that such a requirement was an unlawful surcharge in violation of 28 C.F.R. § 35.136(h) and mentioned that the cost of insurance was akin to charging a student to attend public school. Although the district court in Florida’s ruling is not binding on New Jersey school districts, it is prudent to check service animal policies, procedures, and forms to determine whether such insurance is required, which may be violative of the federal code’s prohibition against surcharges.

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

More often than not, school administrators face questions relating to requests for service animals to accompany students in school. What is a service animal? Who is allowed to bring a service animal to school? What restrictions may a school impose on the use of a service animal? In this two part series, we will explore these and other issues surrounding the use of service animals in schools.

New Jersey school districts must permit access to service animals that accompany students with disabilities. N.J.S.A. 18A:46-13.2 and 13.3 and the Americans with Disabilities Act of 1990 (“ADA”) allow service animals on school grounds and in school buildings – including classrooms and on school buses.

The ADA specifically defines a service animal as “a dog that is individually trained to work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”  28 C.F.R. 35.104. Thus, other types of animals, whether wild or domestic, trained or untrained, do not qualify as service animals under the ADA. Importantly, in order to qualify as a service animal under the ADA, the animal must perform work or tasks that are directly related to the individual’s disability. Such work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, pulling a wheelchair, assisting an individual during a seizure, and alerting individuals to the presence of allergens. However, emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Therefore, household pets and therapy dogs do not qualify as service animals under the ADA.

In responding to requests for a service animal to accompany a student, school districts are limited in the scope of their inquiries when determining whether the animal qualifies. Pursuant to 28 C.F.R. 35.136(f), if it is not readily apparent that the animal qualifies as a service animal, school districts can only make two inquiries, which are the following:

1. Is the use of the animal required because of a disability?
2. What work or task has the animal been trained to perform?

Although these two inquiries are permissible, school districts cannot inquire about the nature or extent of a person’s disability. In addition, a school district cannot require supporting documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.

Notwithstanding the above, N.J.S.A. 18A:46-13.3 allows school officials in New Jersey to require a certification from a veterinarian that the service animal is properly vaccinated and does not have a contagious disease that may harm students or staff.  School officials can also require documentation that any animal license required by the municipality in which the student resides has been obtained for the service animal (i.e. animal license).

Click here for Part 2 of this series in which we will discuss the circumstances in which a service animal can be excluded from school, whether schools are responsible for the handling, care, and supervision of the animal, as well as liability insurance.

On February 22, 2017, the U.S. Departments of Education and Justice (“Departments”) released a Dear Colleague Letter, which rescinds the May 2016 federal guidance documents regarding the rights of transgender students. The May 2016 guidance documents offered clarification that Title IX of the Education Amendments of 1972 (“Title IX”) prohibits discrimination based on a student’s transgender status and/or gender identity. These previously issued guidance documents explained that school districts cannot require transgender students to use restrooms or locker rooms inconsistent with their gender identity or require them to use individual-user facilities when other students are not required to do so. The recent February 2017 Dear Colleague Letter states that such accommodations for transgender students is a matter of educational policy to be addressed by the states.

The Departments stated that the May 2016 guidance documents must be rescinded because they are not based on thorough legal analysis and did not follow any formal public rulemaking process. However, the February 2017 Dear Colleague Letter explains that the U.S. Department of Education Office for Civil Rights “will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students.”

The Departments’ interpretation of Title IX, an anti-discrimination statute, does not change New Jersey school districts’ obligations with respect to transgender students. Specifically, the New Jersey Law Against Discrimination (“NJLAD”) prohibits discrimination based on an individual’s gender identity or expression in places of public accommodation. Under the NJLAD, a student must be allowed to use the bathroom, locker, or other sex-segregated public facility consistent with their gender identity or expression.

Most harassment, intimidation, and bullying (“HIB”) investigations arise from allegations by a student against another student. However, New Jersey school districts must also investigate HIB allegations by a student against a staff member. On December 21, 2016, in M.R. o/b/o M.R. v. Board of Education of the Ramapo Indian Hills Regional High School District, the New Jersey Commissioner of Education upheld an Administrative Law Judge’s determination that a cheerleading coach’s conduct did not constitute HIB and did not violate the Anti-Bullying Bill of Rights Act because the conduct was not based on any actual or perceived distinguishing characteristic.

Student M.R. was a cheerleader. The student’s parent alleged that the cheerleading coach bullied M.R. and three other cheerleaders. Specifically, the parent alleged that M.R. text messaged the coach stating that she could not attend that night’s basketball game due to other plans. The parent alleged that the coach responded to the student in a “strong bullying tone” and informed the student and the other students who missed the game that they are kicked off the cheerleading team. Subsequently, the students were reinstated to the team. However, M.R. alleged that the coach singled her out with the other students who had missed the game by telling them that their conversations should be kept private and not to report them to their parents. M.R. alleged that the coach targeted her and the cheerleading team was a hostile environment.

After an HIB investigation, the Ramapo Indian Hills Regional High School Board of Education upheld the Superintendent’s determination that the cheerleading coach’s conduct did not constitute HIB against M.R. The parent appealed this decision, which was ultimately upheld by an Administrative Law Judge and the Commissioner of Education.

Importantly, the Commissioner found that the conduct in question was not HIB because the parent failed to show that the coach was motivated by any actual or perceived distinguishing characteristic of the student – a critical element to establishing HIB. A distinguishing characteristic includes race, sex, gender identity, etc. Rather, the parent and student were unhappy with the manner in which the coach interacted with the student. However, that dissatisfaction by itself does not constitute HIB in violation of the Anti-Bullying Bill of Rights Act.

The Commissioner found that the Board’s decision was not arbitrary and capricious because the conduct in question did not meet the statutory definition of HIB set forth in N.J.S.A. 18A:37-14. The Board’s determination ultimately prevailed, and the parent’s case was dismissed.

On October 24, 2016, the New Jersey Commissioner of Education (“Commissioner”) upheld an Administrative Law Judge’s (“ALJ”) decision that the Ocean Township Board of Education (“Board”) violated a state education statute which requires school districts to obtain informed written consent prior to administering a student survey. However, the Commissioner rejected the ALJ’s decision to impose a monetary penalty against the Board.

In Green v. Board of Education of the Township of Ocean, the parents of sixth-graders successfully argued that the Board failed to obtain written informed consent in violation of N.J.S.A. 18A:36-34. Pursuant to the Board’s policy and practice at the time regarding student surveys, the Superintendent wrote a letter to all parents informing them that an “Attitude and Behavior Survey” will be administered to the students which addressed issues related to family life, school, extracurricular activities, personal relationships, and drugs and alcohol. The goal was to obtain information to assist the Board in developing programs and services for the school community. In addition, the Superintendent’s letter explained to the parents that the survey will be anonymous.

The Superintendent instructed the parents that if they do not want their child to participate in the survey, they must return an “opt-out” form. Thereafter, the Board administered the survey only to those students whose parents did not submit the opt-out form. Sometime after the administration of the survey but before the parents filed their petition, the Board revised its policy.

The Commissioner concurred with the ALJ that the Board’s “opt out” system does not satisfy the informed written consent requirement pursuant to N.J.S.A. 18A:36-34. While the Superintendent provided notice to the parents of the specific nature of the survey, a parent’s silence or failure to opt-out of the survey does not rise to the level of informed written consent. Moreover, the Commissioner and ALJ rejected the Board’s argument that the anonymity of the survey does not require any written consent from the parents. Rather, N.J.S.A. 18A:36-34 imposes an affirmative duty on the school district to secure express written consent. Stated differently, the statute permits the school district to give the survey only after the parent “opts in.”

As a result, the Commissioner agreed with the ALJ that the Board violated N.J.S.A. 18A:36-34 and required the Board to redact the results of the survey from student records if any results were contained therein. The Board was also required to retrieve all survey information from any outside agencies that may have received the survey results.

Fortunately for the Board, the Commissioner did not impose a $1000 penalty recommended by the ALJ. In reaching that conclusion, the Commissioner reasoned that the Board had revised its policy and had taken remedial steps to comply with N.J.S.A. 18A:36-34 moving forward. Therefore, a monetary penalty is not appropriate.

The entirety of N.J.S.A. 18A:36-34 regarding the administration of student surveys can be found here.

What is the connection between the First Amendment right to free speech and the New Jersey Anti-Bullying Bill of Rights Act? On October 20, 2016, the U.S. District Court for the District of New Jersey in Dunkley v. Greater Egg Harbor Regional School District, 2016 U.S. Dist. LEXIS 145389 (2016) answered this precise question: a student’s First Amendment right to free speech is not protected when that speech amounts to harassment, intimidation, or bullying (“HIB”).

In December 2013, high school senior Bryshawn Dunkley was suspended for two days for his out-of-school conduct in which he posted a video on YouTube that criticized a football teammate. Approximately two months later in February 2014, Dunkley was suspended for nine days after the school learned that he and another student operated an anonymous Twitter account in which they criticized, ridiculed, and targeted several students. Initially, Dunkley denied his involvement in the Twitter postings. However, after the other student admitted to the conduct and confirmed Dunkley was a co-owner of the account, Dunkley finally admitted to his participation.

The school also conducted a formal HIB investigation pursuant to the New Jersey Anti-Bullying Bill of Rights Act and determined that Dunkley’s conduct constituted HIB in violation of the state’s statute and the school’s policies. In addition, the school filed a juvenile complaint with the local police department.

Dunkley and his parents sued the school district alleging that his First Amendment right to free speech was violated when the school disciplined him for the YouTube and Twitter postings. The District Court found in favor of the school district and reasoned that Dunkley’s free speech rights could not have been violated because his speech – one that harasses, intimidates, or bullies other students – is the exact type of speech that school districts are required to restrict. Specifically, the Anti-Bullying Bill of Rights Act triggered the school district’s obligation to investigate the origination of the Twitter account as a potential HIB. Once the school district determined Dunkley’s conduct amounted to HIB, it was within its discretion to impose a nine-day suspension.

While recognizing that students do not lose their constitutional rights to free speech when they enter the school building, the District Court could not find in favor of Dunkley. School districts may restrict student speech if such speech materially and substantially disrupts the operations of the school. The District Court found that school operations were materially disrupted when numerous parents and students contacted the school to initially report the Twitter postings. Those reports triggered the school’s investigation which led them to Dunkley, who initially lied about his involvement and further compounded the school district’s investigation.

In the age of social media, smartphones, and wireless internet access, a school district’s obligation to investigate conduct as HIB and potentially restrict student speech is not limited to brick-and-mortar boundaries of the school walls. A student’s out-of-school conduct may seriously affect other students and the operations of the school.

The parents of a student, who developed a vision impairment, sued the Mullica Township Board of Education (“Board”) under the New Jersey Tort Claims Act (“TCA”) for the school nurse’s failure to inform them that the student failed a visual acuity test during the 2001-2002 school year. In 2004, the student again failed the test. At that time, the school nurse notified the parents of the results of both tests. On August 17, 2016, New Jersey Supreme Court in Parsons v. Mullica Township Board of Education, _N.J._(2016) ruled that the TCA immunized the Board, as a public entity, from liability because reporting the results of the tests are part of a preventative public health examination.

N.J.S.A. 59:6-4 of the TCA shields public entities from liability for failing to perform an adequate physical or mental examination for the purposes of determining whether the individual has a disease or physical or mental condition. What tests are considered “examinations” under the TCA? Is the reporting process part of an examination? The New Jersey Supreme Court answered these questions in its recent decision.

The Supreme Court first determined that the visual acuity test given to the student constituted a “physical examination” under the TCA. The parents’ unsuccessfully argued that they should be permitted to pursue their TCA claims on the basis that reporting the results of the test fell outside of an examination. In contrast, the Board argued that reporting the results is not separate and distinct from the examination, as contemplated by the TCA. In rejecting the parents’ argument, the Supreme Court relied upon the standards of the American Medical Association and Mayo Clinic and concluded that a complete examination as defined by the TCA includes communicating the results to the parents.

The Supreme Court also recognized the Legislature’s intent in enacting the TCA – to provide compensation to tort victims without “unduly interfering with governmental functions and without imposing an excessive burden on taxpayers.” Liability under the TCA is exception, not the rule. The TCA’s immunities provided to school districts and other public entities are absolute. Any ambiguities lean towards favoring immunity.