NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3045-22
J.S. AND S.S. ON BEHALF OF MINOR CHILD, A.S.,
Petitioners-Respondents,
v.
BOARD OF EDUCATION OF THE WEST MORRIS REGIONAL HIGH SCHOOL DISTRICT, MORRIS COUNTY,
Respondent-Appellant. _______________________________
NEW JERSEY COMMISSIONER OF EDUCATION,
Respondent. _______________________________
Submitted October 30, 2024 – Decided January 10, 2025
Before Judges Marczyk and Paganelli.
On appeal from the New Jersey Commissioner of Education, Docket No. 15-2/22. Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for appellant (Jodi S. Howlett, Danielle A. Panizzi, and Arsen Zartarian, on the briefs).
David R. Giles, attorney for respondents J.S. and S.S. on behalf of minor child A.S.
Matthew J. Platkin, Attorney General, attorney for respondent Commissioner of Education (Amna T. Toor, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM
Respondent Board of Education of the West Morris Regional High School
District (Board) appeals from the April 24, 2023 final agency decision of the
Acting Commissioner of Education (Commissioner) rejecting the
Administrative Law Judge's (ALJ) initial decision and ordering the Board to
provide A.S. with curb-to-curb transportation to and from her out-of-district
placement beginning in the 2023-2024 school year. Based on our review of the
record and the applicable legal principles, we affirm.
I.
We derive the facts from the record in this matter and from the plenary
hearing of a separate administrative proceeding between the parties.1 A.S. is a
1 The parties agreed to incorporate by reference all exhibits and testimony from a prior, related special education matter, J.S. & S.S., on behalf of A.S. v. Board
A-3045-22 2 high school student with disabilities who has been deemed eligible for special
education and related services. Her home is located on a steep mountain road
in an area described as having a "very dangerous curve" without sidewalks or
shoulders. Indeed, both parties do not dispute the road is "dangerous and
hazardous."
The Board is responsible for providing A.S. with a free, appropriate public
education. As such, it secured Sage Day High School (Sage) as an appropriate
out-of-district placement to meet A.S.'s special education needs beginning in the
2021 school year. Furthermore, because A.S.'s remote residence from Sage
entitles her to transportation services, N.J.A.C. 6A:27-1.3(a), the Board
contracted with Cassidy Transportation Company (Cassidy) to transport A.S. to
and from the school using a seven-passenger minivan.
Notably, prior to entering high school, A.S.'s previous school district used
a school bus to pick up and drop off A.S. in front of her home. However, the
transportation supervisor of West Morris Regional High School testified that,
of Education of West Morris Regional, No. EDS 08829-21, final decision (Dec. 7, 2022). There, the ALJ issued a final decision concluding the Board's failure to provide A.S. with curb-to-curb transportation to her out-of-district placement did not deny her access to free and appropriate education. That matter is on appeal before the United States District Court for the District of New Jersey.
A-3045-22 3 unlike a larger school bus, Cassidy's minivan does not have the capabilities to
stop traffic with warning lights. Consequently, after viewing the transportation
route, Cassidy determined that stopping directly in front of A.S.'s home would
be unsafe due to the "hazardous conditions" of the road and the vehicle's
inability to halt traffic safely.
As a result, Cassidy and the Board agreed to place A.S.'s bus stop at the
municipal building located one-third of a mile down the road from her home,
which was reflected in her individualized education program (IEP). However,
A.S.'s parents indicated the road is too dangerous for her to walk to the assigned
bus stop due to the lack of a shoulder or sidewalks. Concerned for her safety,
they drove her to and from the municipal building bus stop every day.
In February 2022, J.S. and S.S. on behalf of A.S. filed a petition with the
Department of Education (DOE) challenging the Board's decision not to provide
her with curb-to-curb transportation as discriminatory. Specifically, petitioners
alleged A.S. was denied curb-to-curb transportation—a service she would have
received as a general education student—because she has disabilities. She
sought a declaratory ruling that the Board violated Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794; Title II of the Americans with Disabilities
Act (ADA), 42 U.S.C. §§ 12131-12134; New Jersey's Law Against
A-3045-22 4 Discrimination (NJLAD), N.J.S.A. 10:5-1 to -50; and New Jersey's Equality and
Equity in Education Law, N.J.S.A. 18A:36-20 and N.J.A.C. 6A:7-1.1.
The matter was transmitted to the Office of Administrative Law (OAL)
and assigned to an ALJ. On January 30, 2023, the ALJ issued an initial decision,
in which it found the Commissioner lacked jurisdiction over A.S.'s claims
arising under Section 504, the ADA, and NJLAD but had jurisdiction to hear the
Equality and Equity in Education claim. The ALJ ultimately rejected
petitioners' claim finding the Board's actions did not discriminate against A.S.
because her disability "may be a cause in fact, [but] it is not the only cause in
fact." Thus, the ALJ concluded that "A.S. being picked up at the municipal
building is an unintended consequence of the Board's implementation of A.S.'s
IEP."
In April 2023, the matter returned to the Commissioner for a final
decision, in which she rejected the ALJ's initial decision and determined the
Board was "not meeting its responsibility to provide A.S. with appropriate
transportation to and from school" under N.J.A.C. 6A:27-1.3(a). The
Commissioner found the Board had not provided "persuasive evidence that it
[was] incapable of safely stopping in front of A.S.'s" home "yet it [required A.S.]
to walk along" the same hazardous road to her bus stop at the municipal building.
A-3045-22 5 The Commissioner further stated "[A.S.'s] parents should not be burdened with
the additional responsibility of driving her back and forth [to her assigned bus
stop] because the Board has chosen a location that is indisputably unsafe for her
to traverse on her own."
After considering the "treacherous route A.S. would be required to walk"
and the prior history of school buses safely stopping in front of A.S.'s home, the
Commissioner ordered the Board "to provide A.S. with curb-to-curb
transportation to and from Sage beginning in the 2023-24 school year." The
Commissioner commented the Board is free to use a larger school bus if it cannot
meet its responsibility using the seven-passenger minivan.
II.
On appeal, the Board contends the Commissioner's final decision should
be overturned as arbitrary, capricious, and unreasonable. It further argues the
Commissioner failed to apply the arbitrary, capricious, or unreasonable standard
to the Board's bus stop determination. The Board also asserts the Commissioner
erred by imposing the burden of proof upon the Board to disprove petitioners'
allegations. It also contends the Commissioner drew conclusions not supported
by the record and that petitioners failed to prove discrimination.
A-3045-22 6 Our role in reviewing the final decision of an administrative agency is
limited. In re Herrmann, 192 N.J. 19, 27 (2007). When a contested case is
submitted to the OAL for a hearing, the agency head must review the record
submitted by the ALJ and give attentive consideration to the ALJ's initial
decision. N.J. Dep't of Pub. Advoc. v. N.J. Bd. of Pub. Util., 189 N.J. Super.
491, 506 (App. Div. 1983). The agency head nevertheless remains the primary
factfinder and maintains the ultimate authority to reject or modify findings of
fact, conclusions of law, or interpretations of agency policy. Id. at 507 (citing
N.J.S.A. 52:14B-10(c)).
Established principles of law direct us not to upset an agency
determination absent a showing that it was arbitrary, capricious, or
unreasonable; that it lacked fair support in the evidence; or that it violated
legislative policies. Lavezzi v. State, 219 N.J. 163, 171 (2014); Campbell v.
Dep't of Civ. Serv., 39 N.J. 556, 562 (1963). The "final determination of an
administrative agency . . . is entitled to substantial deference." In re Eastwick
Coll. LPN-RN Bridge Program, 225 N.J. 533, 541 (2016). "A reviewing court
'may not substitute its own judgment for the agency's, even though the court
might have reached a different result.'" In re Stallworth, 208 N.J. 182, 194
(2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)).
A-3045-22 7 To determine whether an agency action is arbitrary, capricious, or
unreasonable, a reviewing court must examine:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Ibid. (quoting Carter, 191 N.J. at 482-83).]
"The burden of demonstrating that the agency's action was arbitrary, capricious
or unreasonable rests upon the [party] challenging the administrative action." In
re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006).
We first address the Board's argument that the Commissioner erred by not
applying the arbitrary, capricious, or unreasonable standard to the Board's
determination regarding the location of the bus stop. It asserts we should vacate
the Commissioner's final decision for failing to afford appropriate deference to
its bus stop placement.
Specifically, the Board contends the Commissioner was not permitted to
overturn the decision to assign A.S.'s bus stop at the municipal building in the
absence of finding it was arbitrary, capricious, or unreasonable. It posits that
decisions of local boards of education are entitled to a "presumption of
A-3045-22 8 correctness" and must remain undisturbed unless shown to be arbitrary,
capricious, or unreasonable. The Board argues the Commissioner failed to
explicitly analyze its bus stop determination under that standard of review. It
further alleges the Commissioner provided no legal basis for requiring a school
district to place a bus stop at a child's home, or that the failure to do so is
arbitrary, capricious, or unreasonable. The Board maintains it has broad
discretion to efficiently operate its schools.
The Board's arguments are unavailing. The Commissioner has
jurisdiction to "hear and determine . . . all controversies and disputes arising
under . . . school laws." N.J.S.A. 18A:6-9. Our "Supreme Court 'has repeatedly
reaffirmed the great breadth of the Commissioner's power'" to decide matters
within its "fundamental and indispensable jurisdiction." Theodore v. Dover Bd.
of Educ., 183 N.J. Super. 407, 412-13 (App. Div. 1982) (quoting Hinfey v.
Matawan Reg'l Bd. of Educ., 77 N.J. 514, 525 (1978)). In a contested case,
N.J.S.A. 52:14B-10(c) provides:
The head of the agency, upon a review of the record submitted by the [ALJ], shall adopt, reject or modify the recommended report and decision no later than [forty-five] days after receipt of such recommendations. In reviewing the decision of an [ALJ], the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons
A-3045-22 9 for doing so. . . . In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.
The Board cites Kopera v. Board of Education of West Orange for the
"well established rule that action of the local board which lies within the area of
its discretionary powers may not be upset unless patently arbitrary , without
rational basis or induced by improper motives." 60 N.J. Super. 288, 294 (App.
Div. 1960). In Kopera, we held the Commissioner did not have the ability to
"redetermine for himself" whether a teacher's performance had been
unsatisfactory for purposes of a salary increment and raise. Id. at 295. Notably,
under the relevant statute, a board may withhold increments for "inefficiency or
other good cause." Ibid. Thus, the statute "clearly was meant to vest local
boards with the ability to withhold increments from teachers who had not
performed well." Probst v. Bd. of Educ. of Borough of Haddonfield, 127 N.J.
518, 526 (1992). Accordingly, given the express discretionary power vested in
the board, the Commissioner could not "substitute his judgment for that of" the
board absent finding the board's decision lacked a reasonable basis. Kopera, 60
N.J. at 296.
A-3045-22 10 The Board's reliance upon Kopera is misplaced. Although Kopera has
been applied in similar contexts to afford some deference to local board
determinations, it is most relevant in cases where a statute expressly prescribes
a local board with discretionary decision-making authority. See, e.g.,
Parsippany-Troy Hills Educ. Ass'n v. Bd. of Educ. of Parsippany-Troy Hills
Twp., 188 N.J. Super. 161, 166-67 (App. Div. 1983) (finding the relevant
statutory provisions and code regulations provided a local board with discretion
to decide school curriculums, subject to the Commissioner's review under
Kopera).
Here, in contrast, the Commissioner relied upon the DOE regulation
concerning student transportation, which states, "[d]istrict boards of education
shall provide transportation to . . . students with disabilities who reside remote
from their assigned school or who require transportation services in accordance
with their [IEP]." N.J.A.C. 6A:27-1.3(a). Given the parties do not dispute A.S.
resides remote from Sage, the regulatory code mandates the Board to provide
her with transportation. However, it is otherwise silent on the Board's or
Commissioner's discretionary authority to assign bus stops.
Notably, even presuming the Board has discretion to decide the location
of a student's bus stop, the Commissioner may, nonetheless, reach a contrary
A-3045-22 11 conclusion so long as it is supported by the evidence in the record. See Dore v.
Bd. of Educ. of Bedminster Twp., 185 N.J. Super. 447, 453 (App. Div. 1982).
After all, N.J.S.A. 52:14B-10 authorizes the Commissioner to reject an ALJ's
initial decision, provided the final decision specifies sufficient reasons for doing
so. Accordingly, we confine our analysis to review the Commissioner's final
decision for arbitrary, capricious, or unreasonable action.
Guided by the principles of our standard of review, we are satisfied the
Commissioner did not act in an arbitrary or capricious manner in ordering the
Board to provide A.S. with curb-to-curb transportation. After reviewing the
record and the ALJ's initial decision, the Commissioner found the Board failed
to meet its responsibility to provide A.S. with appropriate transportation to Sage.
The parties do not dispute that because A.S. is a student with disabilities who
resides remotely from Sage, the Board is required to provide her with
transportation to and from the school in accordance with her IEP under N.J.A.C.
6A:27-1.3(a). The Commissioner noted, however, the Board placed A.S.'s bus
stop at the municipal building parking lot, requiring her to travel one-third of a
mile down a steep hazardous road, which, according to Cassidy, was too
dangerous for a vehicle to stop along.
Consequently, the Commissioner noted:
A-3045-22 12 [she could not] reconcile why the Board would accept Cassidy's representation that the road is so unsafe that a vehicle cannot safely pick up a student (especially when other buses have previously stopped in front of her house), but at the same time find it acceptable for a student to walk down the same hazardous road, without a shoulder or sidewalks, to reach her assigned bus stop.
The Commissioner determined that although A.S.'s parents have been driving
her to the bus stop to ensure her safety, they should not be required to do so,
because N.J.A.C. 6A:27-1.3(a) places the responsibility of providing student
transportation upon the Board. The Commissioner, thus, concluded A.S.'s
parents should not be burdened with transporting A.S. to her bus stop simply
because "the Board has chosen a location that is indisputably unsafe for her to
traverse on her own." Accordingly, the Commissioner rejected the ALJ's initial
decision and ordered "[t]he Board . . . to provide A.S. with curb-to-curb
transportation to and from Sage beginning in the 2023-24 school year."
The Board asserts "there is no legal authority requiring a school district to
provide a bus stop to a child's driveway." However, the Commissioner made no
such declaration. Rather, the Commissioner concluded under the specific facts
of this case that A.S. should be picked up and dropped off in front of her home
due to the "treacherous route" she would face if required to walk to the municipal
building. Her decision was well-supported by the record.
A-3045-22 13 Contrary to the Board's contentions, the record does not reflect the
Commissioner inferred facts or drew conclusions lacking evidentiary support in
reaching her decision. The Commissioner relied upon the ALJ's findings of fact,
including the summary of the record, evidence of the dangerous road adjacent
to petitioners' home, "the treacherous route" A.S. would be required to walk to
reach her assigned bus stop, and school buses stopping in front of her home in
the past. Both parties also acknowledge the road is "dangerous and hazardous."
The Commissioner further commented that "the record is devoid" of evidence
or testimony from Cassidy explaining why it is incapable of stopping in front of
A.S.'s home but can require her to walk along the dangerous road. Given these
findings, we are convinced the evidence in the record amply supports the
Commissioner's decision concerning A.S.'s safety.
Moreover, the Board asserts the Commissioner lacked authority to award
relief for a violation of N.J.A.C. 6A:27-1.3(a). It reasons the Commissioner
failed to address the jurisdictional claims of discrimination before her and
improperly awarded relief based on a regulatory issue petitioners never raised—
whether the Board satisfied its responsibility to provide transportation. We find
no merit in the Board's argument.
A-3045-22 14 Specifically, the Commissioner found it unnecessary to reach the
discrimination arguments given A.S.'s requested relief of curb-to-curb
transportation had been granted. Notably, however, the Board fails to provide
any legal authority suggesting the granting of relief under N.J.A.C. 6A:27-1.3(a)
rather than the alleged discriminatory actions exceeded the "great breadth" of
the Commissioner's power. Theodore, 183 N.J. Super. at 413; see also Archway
Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 424 (App.
Div. 2002) ("The Commissioner's authority is plenary."). We therefore conclude
the Commissioner did not act outside of her authority in awarding relief on
grounds pertinent to the issue of student transportation before her.
We briefly address the Board's argument that the Commissioner
impermissibly imposed the burden upon it to disprove A.S.'s claims. To support
this assertion, the Board points to the Commissioner finding "the Board has not
provided persuasive evidence" that it is incapable of stopping in front of A.S.'s
home. The Board further contends the Commissioner never indicated how A.S.
satisfied her burden of proof as to the discrimination claims. We are
unpersuaded by the Board's argument.
The party challenging the administrative action bears the burden of
demonstrating that an agency's action is arbitrary, capricious, or unreasonable.
A-3045-22 15 Lavezzi, 219 N.J. at 171. Here, the Commissioner concluded the Board did not
satisfy its responsibility to provide A.S. with transportation under N.J.A.C.
6A:27-1.3(a) based on the ALJ's "largely undisputed" factual findings.
However, the Commissioner never placed the burden of proof on the Board but
instead simply noted the Board's failure to provide "persuasive evidence"
explaining the rationale for Cassidy's decision.
Specifically, the ALJ stated that Cassidy agreed to pick up A.S. at the
municipal building because it "could not safely pick up A.S. directly in front of
her home with the [minivan] it utilizes to transport A.S." However, the
Commissioner found the record "devoid of testimony from a representative of
Cassidy to explain its rationale in detail." The Commissioner was "uncertain"
why the minivan could not "pull into [A.S.]'s driveway" or, alternatively, why
Cassidy could not use a shorter yellow school bus with flashing lights to stop
traffic. Thus, the Commissioner concluded the Board violated N.J.A.C. 6A:27-
1.3(a) after considering the evidence of Cassidy's refusal to stop in front of
A.S.'s home despite simultaneously suggesting she should traverse the same
road it deemed dangerous and the prior history of school buses stopping at A.S.'s
home.
A-3045-22 16 In rendering her final decision, the Commissioner observed the absence
of support in the record regarding Cassidy's inability to safely stop in front of
A.S.'s home, coupled with the evidence suggesting A.S. has a hazardous route
to walk to her bus stop. Therefore, the Commissioner found Cassidy should be
capable of safely stopping at or near A.S.'s home. We conclude the
Commissioner made a reasonable safety-related decision based on the evidence
presented before the ALJ, not the Board's inability to disprove A.S.'s allegations.
Lastly, the Commissioner noted: "Given that petitioners' requested relief
of curb-to-curb transportation is being granted, it is unnecessary for [her] to
reach the remaining discrimination arguments in this case." Accordingly, we
also need not address the Board's arguments regarding the discrimination issues.
Because the Commissioner's final decision is supported by sufficient
credible evidence in the record, we discern no basis to disturb it. To the extent
we have not addressed any of the Board's remaining arguments, we find they
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-3045-22 17