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N.J. Supreme Court Rules Student with State-Issued Diploma Entitled to Programming Under the IDEA

By: Victoria M. Adeleke, Law Clerk
Edited by: Sanmathi (Sanu) Dev, Esq.

On August 7, 2024, the New Jersey Supreme Court ruled that a student who was granted a state issued diploma (GED) was allowed to re-enroll at his public high school and was still entitled to access a free appropriate public education (“FAPE”) under the federal Individuals with Disabilities Education Act (“IDEA”) in the case Board of Education of the Township of Sparta v. M.N. The Court determined a New Jersey State-issued diploma awarded based on passing the GED is not considered a “regular high school diploma” under 34 C.F.R. § 300.102(a)(3)(iv) and that a student who receives such a State-issued diploma was not precluded from special education services under the IDEA.

A student who received a State-issued diploma and who obtained a GED attempted to re-enroll in school within the Sparta Board of Education (“Board”). The Board denied the request contending that the student was no longer entitled to special education services under the IDEA because he had received his GED. The parent challenged this assertion and filed for due process. The Board filed a Petition for Declaratory Ruling, seeking a declaration that it was not obligated to re-enroll the student. The New Jersey Commissioner of Education denied this request and transferred the matter to the Office of Administrative Law (“OAL”). The Administrative Law Judge (“ALJ”) ruled in favor of the Board, stating that the student’s diploma was a “regular high school diploma” and not merely a GED. Consequently, the ALJ concluded that the student was no longer entitled to FAPE. The parent appealed the ALJ’s decision to the New Jersey Appellate Division, arguing that the ALJ and NJDOE had erred in their interpretation of federal regulations regarding special education eligibility. The Appellate Division affirmed. The parent further appealed, and the New Jersey Supreme Court granted her petition for certification.

The primary legal question for the Supreme Court was whether the student’s receipt of a State-issued diploma precluded the right to receive special education services under the IDEA and New Jersey state law (N.J.S.A. 18A:46-1.1 et seq.). The Supreme Court closely examined the federal regulations under the IDEA, specifically 34 C.F.R. § 300.102(a)(3). This regulation outlines the eligibility for FAPE and distinguishes between students who have graduated with a “regular high school diploma” and those who have not. The Court noted that the regulation defines a “regular high school diploma” as the standard diploma awarded to the majority of students in the state, which must be fully aligned with state standards. Importantly, it specifies that a regular high school diploma does not include a recognized equivalent, such as a General Educational Development (GED) diploma. The Court considered New Jersey state law, particularly N.J.A.C. 6A:8-5.2(c), which governs the issuance of diplomas. The Court recognized that while New Jersey allows for the issuance of diplomas based on passing the GED, this does not equate to a “regular high school diploma” as defined by federal law. The Court emphasized the legislative intent behind the distinction between State-issued diplomas and State-endorsed diplomas, arguing that the New Jersey Legislature did not intend for a GED to confer the same rights and privileges as a traditional high school diploma.

Ultimately, the Court held that a New Jersey State-issued diploma awarded based on passing the GED is not considered a “regular high school diploma” under 34 C.F.R. § 300.102(a)(3)(iv). Consequently, the Court determined that a student who receives such a State-issued diploma remains entitled to receive a FAPE under the IDEA. Therefore, the Court reversed the judgment of the Appellate Division, affirming that the student was still eligible for special education services despite having received a GED-based diploma.

N.J. Supreme Court Declines Awarding Attorney Fees Under Common Law Right of Public Access

By: Ruhani K. Aulakh, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On June 20, 2023, the New Jersey Supreme Court in Gannett Satellite Info. Network, LLC v. Township. of Neptune declined to adopt an exception to the American Rule for attorneys’ fees under common law right of access claims to public records, which requires each party to pay its own fees in civil litigation.  The Court held that expanding the four categories of exceptions to the American Rule to include attorneys’ fees under the common law right of access would violate public policy. 

A former police officer employed by Neptune Township (“Township”) killed his wife in 2016 and was sentenced to a thirty-year prison term.  Two years later, the Monmouth County Prosecutor’s Office issued a report on the case that was based on the officer’s Internal Affairs (“IA”) records.  Gannett Satellite Information Network, d/b/a the Asbury Park Press (“Gannett”) submitted a request for the IA records to the Township, pursuant to both the Open Public Records Act (“OPRA”) and the common law right of public access.  The Township’s municipal clerk denied the request, citing to portions of the Internal Affairs Policy and Procedures Manual that addressed the confidentiality of IA records.

Gannett sued the Township in the Superior Court of New Jersey, claiming violations of both OPRA and the common law.  Gannett requested the release of the records and an award for attorneys’ fees.  The Township moved to dismiss the action for failure to state a claim, which the trial court granted in part and denied in part.  The trial court dismissed Gannett’s OPRA claim, but ordered the release of the contested records in accordance with the common law and awarded a partial fee award.

The Township appealed to the New Jersey Appellate Division, arguing that the trial court erred in releasing the requested records and awarding a partial award for attorneys’ fees.  Gannett cross-appealed, arguing that the trial court erred in dismissing its OPRA claim.  The Attorney General informed the Appellate Division that a redacted version of the officer’s IA files would be released, so only the question of attorneys’ fees and the OPRA claim remained.  The Appellate Division affirmed the trial court’s determination that Gannett had no claim to the officer’s IA files under OPRA.  Regarding the award of attorneys’ fees, the Appellate Division held that while the Court recognized a right to attorneys’ fees under the common law right of access in Mason v. City of Hoboken, 196 N.J. 51, 57 (2008), that right is subject to the discretion of the court.  The Appellate Division utilized its discretion and reversed the trial court’s award of attorneys’ fees under the common law right of access.

The New Jersey Supreme Court granted Gannett’s petition for certification, focusing solely on the issue of attorneys’ fees.  The Court affirmed the Appellate Division’s reversal of the award for attorneys’ fees; however, the Court’s reasoning differed.  The Court clarified its holding in Mason, stating that it had not recognized a right to attorneys’ fees under the common law right of access; rather, it construed several provisions of OPRA to determine the award of fees in that case.  As such, the determination of an award for attorneys’ fees under the common law right of access was a question of first impression for the Court.

The Court held that it has recognized exceptions to the American Rule under four general categories.  First, it recognizes an exception pursuant to fee-shifting statutes. Second, it recognizes an award of attorneys’ fees when permitted by court rule.  Third, attorneys’ fees may be awarded in decisions involving breaches of fiduciary duties.  Lastly, an exception may apply where the parties have contractually agreed to an award of attorneys’ fees.

Here, the Court held that an award of attorneys’ fees does not fit within any of the four categories of exceptions.  Further, the Court held that recognizing an exception to the common law right of access case would violate public policy.  The Court reasoned that a common law request for information requires a records custodian to conduct a much more fact intensive analysis to determine whether the requested information should be released.  If there is a threat of an award of attorneys’ fees, a records custodian may be inclined to release information not properly subject to disclosure in order to avoid such an award.  Thus, the Court declined to adopt an exception to the American Rule under the common law right of access.

The Court provided two recommendations to ensure the proper disposition for requests of information pursuant to the common law right of access. First, it recommended that clerks and other records custodians for public entities receive comprehensive training with respect to common law right of access claims.  Second, it urged individuals requesting information pursuant to a common law right of access to explain, in detail, their interest in the subject matter of the material.

N.J. Supreme Court Holds Teacher Maintains Tenure Because She Did Not Knowingly Waive That Right

By: Eric M. Richwine, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

On June 12, 2023, the New Jersey Supreme Court in Parsells v. Board of Education of the Borough of Somerville held that a New Jersey teacher did not knowingly waive her tenured right to a full-time teaching position under the Tenure Act when she voluntarily moved to a part-time position, unaware that she had no right to return to her full-time role.   

Catherine Parsells, a full-time, tenured teacher employed by the Somerville Board of Education (“Board”), requested a transfer from full-time teaching to an available in-district, part-time teaching position with benefits. The Board approved the request but did not advise her in advance that she would not have a right to return to a full-time position if she voluntarily took the part-time position. When Parsells eventually wished to return to full-time work, she was informed that she had no automatic entitlement to a full-time teaching position and that if one were to become available, she would be required to apply for it. Parsells eventually applied for a full-time teaching position but was not selected.

Parsells appealed to the New Jersey Commissioner of Education (“Commissioner”), arguing that she did not waive her tenure rights by accepting a part-time position and that the Board violated her rights by hiring out-of-district teachers with no tenure for full-time positions instead of herself. The Administrative Law Judge rendered an initial decision in favor of the Board; however, the Commissioner ultimately reversed, reasoning that Parsells did not waive any rights to her full-time position and that the Board had a duty to inform Parsells of the consequences of switching to part-time employment, i.e., the loss of her right to return to full-time job status before she voluntarily switched to part-time employment.  

The Board appealed to the New Jersey Appellate Division, arguing that the Commissioner erred in finding that it was required to give notice of the impact of Parsells’ switch to a part-time role and that there was no valid waiver by Parsells. The Appellate Division extended the holding of Bridgewater-Raritan Education Association v. Board of Education of Bridgewater-Raritan School District, 221 N.J. 349 (2015) to impose a duty to notify full-time teachers who consider voluntarily transferring to part-time teaching that they may not have the right to return to their full-time position and therefore affirmed the Commissioner’s decision.

The Board challenged the Appellate Division’s decision, but the New Jersey Supreme Court unanimously affirmed the holding. The Court reasoned that Parsells did not knowingly waive her tenured right to returning to a full-time teaching position as required under the Tenure Act. However, the Court rejected the Appellate Division’s extension of Bridgewater-Raritan to impose a duty of notification on school boards in this instance. Instead, the Court held that Parsells did not abandon her right to her full-time position knowingly and unequivocally as required by the Court’s decision interpreting the Tenure Act in Knorr v. Smeal, 178 N.J. 169, 177 (2003). As such, the Court affirmed as modified.

Moving forward, despite the Court holding that there was no legal basis for a duty to notify in this instance, the Court encouraged school boards to address whether a tenured teacher is voluntarily and knowingly waiving their right to a full-time position: any waiver of a teacher’s tenure rights must be “clear, knowing, and unequivocal.”

NJ Supreme Court Holds Adverse Employment Action Not a Required Element of a Failure to Accommodate Claim

By: Gitika Kapoor, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

On June 8, 2021, the Supreme Court of New Jersey held in Richter v. Oakland Board of Education that an employee is not required to establish adverse employment action such as demotion or termination in a failure to accommodate disability claim brought against an employer under the New Jersey Law Against Discrimination (“NJLAD”).  In addition, the Court considered whether the plaintiff’s claim was barred by the exclusive remedy provision of the Workers’ Compensation Act (“WCA”). The Court held that the NJLAD and WCA are not in tension with each other, and the WCA did not bar the plaintiff’s lawsuit.

In Richter, a teacher who suffered from Type 1 diabetes was assigned a late lunch period and experienced a hypoglycemic event in the classroom.  As a result, she suffered a seizure, lost consciousness, and struck her head on a lab table and the floor, causing excessive bleeding. She filed a workers’ compensation claim and received compensation for her medical bills and disability benefits. She later brought a NJLAD action asserting a failure to accommodate disability claim against the Oakland Board of Education. In her complaint, she alleged that, despite repeated requests to alter her schedule, the principal failed to accommodate her request to be assigned an earlier lunch time. The trial court granted summary judgment in favor of the Board, which the Appellate Division reversed.

On the NJLAD issue, the New Jersey Supreme Court held that a failure to accommodate claim may arise from an “employer’s inaction, silence or inadequate response to reasonable accommodation request,” and that causing harm to the employee through an adverse employment action is not a necessary element of the claim. The Court recognized that a failure to accommodate is itself an actionable harm, because the wrongful act is the employer’s failure to fulfill its duties under the law. Importantly, the Court noted that a lack of demonstrable consequences in the form of adverse employment action may affect damages. 

Regarding the WCA, the Court held that the statute’s exclusive remedy provision did not bar the plaintiff’s NJLAD claim, reasoning that the legislature intended for the NJLAD to supplement other legal remedies. According to the Court, the NJLAD and WCA both aim to protect workers in the workplace and can function harmoniously, without conflicting with each other. Therefore, the WCA did not bar the plaintiff’s lawsuit.

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