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PORZIO BROMBERG&-NEWMAN P.C.
ATTORNEYS AT LAW MORRISTOWNNJ • NEW YORK NY • PRINCETON NJ • WASHINGTON DC • WESTBOROUGH MA
KERRI A. WRIGHT MEMBER, NJ AND NY BARS
DIRECT DIAL No.: 973-889-4327 E-MAIL ADDRESS: [email protected]
September 15, 2016
VIA ELECTRONIC MAIL AND FEDERAL EXPRESS
Honorable Sarah G: Crowley, A.L.J. Office of Administrative Law 9 Quakerbridge Plaza Trenton, NJ 08619
Re: Upper Freehold Regional Board of Education v. Millstone Township Board of Education, et al. OAL Docket No.: EDU-06068-2016 Our File No.: 19281.05906
Dear Judge Crowley:
We are counsel to the Millstone Township Board of Education in the above matter. Enclosed please find Millstone's Opposition to Petitioner's Motion for Summary Decision.
Should Your Honor have any questions or require anything further, please do not hesitate to contact us.
Respectfully, n
7
Kerri A. Wright
KAW/jac End.
Robert Lorfink, Esq. (via electronic and regular mail) Bruce Helies, Esq. (via electronic and regular mail)
cc:
100 SOUTHGATE PARKWAY, P.O. BOX 1997 MORRISTOWN, NJ 07962-1997
TELEPHONE (973) 538-4006 FAX (973) 538-5146
www .pbn law.c om 3492268
BEFORE THE COMMISSIONER OF EDUCATION
UPPER FREEHOLD REGIONAL BOARD OF EDUCATION,
OAL DOCKET NO.: EDU-06068-2016 AGENCY REFERENCE NO.: 108-4/16
PETITIONER,
v.
MILLSTONE TOWNSHIP BOARD OF EDUCATION AND RED BANK REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION,
RESPONDENTS.
RESPONDENT MILLSTONE TOWNSHIP BOARD OF EDUCATION'S BRIEF IN OPPOSITION TO PETITIONER'S MOTION FOR SUMMARY DECISION
PORZIO, BROMBERG & NEWMAN, P.C. 100 Southgate Parkway Morristown, NJ 07960 973-538-4006 Attorneys for Respondent Millstone Township Board of Education
Vito A. Gagliardi, Jr., Esq. Kerri A. Wright, Esq. Of counsel and on the Brief
Deborah H. Share, Esq. On the Brief
PRELIMINARY STATEMENT
The State of New Jersey has time and again reinforced the policy that students deserve
the choice of educational opportunities that will best serve them when they move from the
secondary school system to further education or career opportunities. As such, all districts have
the discretion as to whether to pay for their students to attend specialized programs outside their
districts that are not available in the high school at which their students are enrolled. Millstone is
no different.
Millstone Township Board of Education opposes the motion for summary decision by
Upper Freehold Regional Schools on its petition regarding Millstone's students' attendance at
Red Bank Regional High School. Upper Freehold Regional's inventive arguments enjoy no
support under the plain reading of the statute or case law. In fact, only two recent cases analyze
N.J.S.A. 18A:38-15, and one of those definitively decides the issue in favor of Millstone.
Millstone has the discretion under the law to allow its students to attend Red Bank
Regional to enjoy the benefits of its State-approved Academies, and to pay for such attendance.
Millstone is only one of many districts that do the exact same thing. Each year, the Executive
County Superintendent approves the budgets of each of the districts that includes sending its
students to Red Bank Regional for these programs, and Red Bank Regional's budget receiving
them.
Millstone's students must be authorized by the Millstone Board to go to Red Bank
Regional at taxpayer expense ~ at no time do Millstone students have the right to force Millstone
to pay for enrollment at Red Bank Regional. Millstone has recognized the distinct courses of
study at Red Bank Regional not offered through Upper Freehold Regional, including both the
renowned International Baccalaureate program and Department of Education approved Career
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and Technical Education programs. As such, Millstone has determined, as is within its lawful
discretion, to pay for these students. Upper Freehold Regional ignores the distinct nature of
these programs and conveniently conflates the statute's specific language of "course of study"
with "subject" and "class."
Upper Freehold Regional's arguments are unsupported by the record and by the case and
statutory law. As such, summary decision in Upper Freehold Regional's favor is not appropriate.
State policy grants students educational choice, and Millstone is acting under legal authority to
effectuate that for its students. Indeed, Upper Freehold Regional's petition is without basis in
law or fact, and should be dismissed now, without further waste of taxpayer money.
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT iv TABLE OF AUTHORITIES
1 STATEMENT OF FACTS 3 LEGAL ANALYSIS
I. UPPER FREEHOLD REGIONAL'S MOTION FOR SUMMARY DECISION SHOULD BE DENIED BECAUSE UPPER FREEHOLD REGIONAL'S CLAIMS FAIL AS A MATTER OF LAW
II. MILLSTONE HAS CLEAR LEGAL AUTHORITY TO PAY FOR ITS STUDENTS' ENROLLMENT AT RED BANK REGIONAL, AND UPPER FREEHOLD REGIONAL PROVIDES NO CONTRADICTORY LEGAL AUTHORITY
3
4
NJ.S.A. 18A:38-15 Applies To All District Boards Of Education, 4
Upper Freehold Regional's own petition states that NJ.S.A. 18A:38-15 is the only method by which Millstone may send its students to Red Bank Regional
b. NJ.S.A. 18A:38-15 does not limit the boards of education to whom the statute applies
Upper Freehold Regional's arguments are not supported by case law 8
a.
5
6
NJ.S.A. 18A:54-7 Is Analogous And Serves To Reinforce State Policy Of g 13 Student Educational Choice
This Matter Is Unrelated To A Sending-Receiving Relationship 14
UPPER FREEHOLD REGIONAL'S INTERPRETATION OF NJ.S.A. 18A:38-15 IS UNFOUNDED, AND UPPER FREEHOLD REGIONAL IGNORES THE APPROVAL STATUS OF THE RED BANK REGIONAL PROGRAMS
III.
15
Upper Freehold Regional Ignores Red Bank Regional's Specialized Programs, Including Its Academies Approved By The Department As Career And Technical Education Programs, And International Baccalaureate Program
Upper Freehold Regional Conflates "Subjects" With "Courses Of Study
A
15
19 g 23 CONCLUSION
iii
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TABLE OF AUTHORITIES
CASES Page(s)
Bd. of Educ. of City of Asbury Park v. Bd. of Educ. of Red Bank Reg'l Sch. Dist., 1997 WL 715018 (N.J. Adm. Mar. 27, 1997)
8, 9, 10, 11, 12, 14
Bd. of Educ. of Union Co. Vocational-Technical Schools v. Bd. of Educ. of Linden, EDU 11819-99 (Oct. 18, 2002), affd 12
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995) 3 , 4
Carter v. N.J. Racing Comm'n, OAL Dkt. No. RAC 629-05, 2005 N.J. AGEN LEXIS 1477, Final Decision (November 16, 2005) 3
D.M. O/B/O A.M. v. Bd. of Educ. of City of Long Branch, et al, 2000 WL 1661431 (N.J. Adm. Oct. 16, 2000) 8, 9, 11, 12, 16
Lichtenberger v. Bd. of Educ. of Maywood, 1966 SLD 163, 165 (Comm'r Sept 26, 1966) 6, 12
3 Saldana v. DiMedio, 275 N.J. Super. 488 (App. Div. 1994)
NEW JERSEY STATUTES
14 N.J.S.A. 18A:38-11
14 N.J.S.A. 18A:38-13
N.J.S.A. 18A:38-15 .passim
22 N.J.S.A. 18A:40A-2
9 N.J.S.A. 18A:54-5
10 N.J.S.A. 18A:54-7
23 N.J.S.A. 18A:71B-89
COURT RULES
3 R. 4:46-2
3 R. 4:46-2(a)
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STATEMENT OF FACTS
Millstone is a Grade K-8 district. It has a sending-receiving relationship with Upper
Freehold Regional for the education of its 9-12 grade students at Allentown High School. (See
Millstone will be sending Certification of Scott Feder (hereinafter "Feder Cert."), r2).
approximately 600 students to Upper Freehold Regional in the 2016-17 school year, at a tuition
rate of $12,682 per student. (See Feder Cert., P).
For more than a decade, a small percentage of Millstone's 9-12 grade students have been
enrolled in Red Bank Regional High School to attend specialized career-based programs. (See
Feder Cert., ^4). Millstone has approved the attendance of approximately 16 students at Red
Bank Regional in the 2016-17 school year. (See Feder Cert., Tf6).
These students have determined to attend Red Bank Regional specifically for the unique
educational opportunities available there, including, but not limited to, the State-approved
Of the 16 Academies and the International Baccalaureate Program. (See Feder Cert., ^5).
students, two are enrolled in the Information Technology Academy, two are enrolled in the
Finance Academy, four are enrolled in the Engineering Academy, seven are enrolled in the
Visual and Performing Arts Academy, and one is enrolled in the Culinary Academy. (See
The Red Bank Regional Certification of Christina Galvao (hereinafter "Galvao Cert."), T[3).
Academy programs in which Millstone students are enrolled are all approved by the State of
New Jersey as Career and Technical education programs. (See Galvao Cert., ^4). Students also
have the opportunity to participate in the high-level International Baccalaureate Program. The
International Baccalaureate coursework is available to be completed during a student's eleventh
and twelfth grade years. Upper Freehold Regional does not offer the International Baccalaureate
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Program at Allentown High School. (See Certification of Kerri A. Wright, Esq. (hereinafter
"Wright Cert." at Exhibit "A")
Millstone's students are enrolled in programs at Red Bank Regional that are courses of
study in separate and distinct areas of instruction from those offered by Upper Freehold
Regional. (See Wright Cert., Exhibit "H"). Specifically, the classes and other opportunities at
Red Bank Regional "go together." (Id.) They are a part of a specifically designed series and
sequence of educational opportunities, which are more in-depth and at a higher level than
anything offered by Upper Freehold Regional. (Id.) Upper Freehold Regional has three
approved Career and Technical Education programs of study at Allentown High School, while
Red Bank Regional offers thirteen, a reflection of the fact that Red Bank Regional has a
demonstrated focus on vocational education, and the commitment of substantial resources to
such vocational education. (Id.) Approval as Career and Technical Education programs requires
that the programs must meet extensive requirements established by the New Jersey Department
of Education ("DOE") and must be re-approved every five years. (Id.)
Many districts in the county, aside from Millstone, similarly pay for their students'
enrollment at Red Bank Regional. Such students may also enroll in the Academies or take
advantage of the International Baccalaureate Program. (See Wright Cert., Exhibit "G").
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LEGAL ANALYSIS
UPPER FREEHOLD REGIONAL'S MOTION FOR SUMMARY DECISION SHOULD BE DENIED BECAUSE UPPER FREEHOLD REGIONAL'S CLAIMS FAIL AS A MATTER OF LAW.
Summary decision cannot be granted to a party who has not established that material
facts are not in dispute. A motion for summary decision is the administrative counterpart to a
motion for summary judgement found at R. 4:46-2. Carter v. N.J. Racing Comm'n, OAL Dkt.
No. RAC 629-05, 2005 NJ. AGEN LEXIS 1477, Final Decision (November 16, 2005).1 R.
4:46-2(a) provides the following:
[A] motion for summary judgment shall be served with briefs, a_statement of material facts, and with or without supporting affidavits. The statement of material facts shall set forth in separately numbered paragraphs a concise statement of each material fact as to which the moving party contends there is no genuine issue, together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted....
Additionally, the New Jersey Supreme Court has held that, when deciding a motion for
summary judgment, "[a] determination whether there exists a 'genuine issue' of material fact that
precludes summary judgment requires the motion judge to consider whether the competent
evidential materials presented, when viewed in the light most favorable to the non-moving party.
are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (emphasis
added). The burden is on the moving party to exclude all reasonable doubt as to the existence of
any genuine issue of material fact, and all inferences of doubt are drawn against the moving
party and in favor of the non-moving party. Saldana v. DiMedio, 275 N.J. Super. 488, 494 (App.
Thus, the critical question is "whether the evidence presents a sufficient Div. 1994).
The terms summary decision and summary judgment will be used interchangeably.
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disagreement to require [a hearing] or whether it is so one sided that one party must prevail as a
matter of law." Brill, 142 N.J. at 533.
MILLSTONE HAS CLEAR LEGAL AUTHORITY TO PAY FOR ITS STUDENTS' ENROLLMENT AT RED BANK REGIONAL, AND UPPER FREEHOLD REGIONAL PROVIDES NO CONTRADICTORY LEGAL AUTHORITY.
11.
Millstone acts under the full authority of the law in paying tuition for its students to
attend Red Bank Regional. Red Bank Regional has the full authority of the law to accept those
students and tuition payments from Millstone.
There is no "de facto sending/receiving relationship" between Millstone and Red Bank
Regional. Millstone is merely following the law, as confirmed by the Commissioner, in allowing
its students the freedom of educational choice espoused by the State. The law itself demonstrates
Millstone has not established a new sending-a preference for student and parent choice.
receiving relationship, nor has it allowed its students to attend "just any school." It has acted
within the confines of the law, as it and many other districts in the county have been doing for
many years. Millstone has the discretion to approve its students' attendance and payment of
As Upper Freehold Regional cannot demonstrate that this decision was arbitrary, tuition.
capricious or unreasonable, summary decision in Upper Freehold Regional's favor is not
appropriate.
N.J.S.A. 18A:38-15 Applies To All District Boards Of A. Education.
Upper Freehold Regional asserts that N.J.S.A. 18A:38-15 applies only to districts that
operate their own high schools. Despite a recitation of aspects of the statute's history. Upper
Freehold Regional fails to cite to any legal precedent for its tortured interpretation of the statute.
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Furthermore, the case law confirms that Upper Freehold Regional is inaccurate and that
Millstone has legal authority for its actions.
a. Upper Freehold Regional's own petition states that N.J.S.A. 18A:38-15 is the only method by which Millstone may send its students to Red Bank Regional.
Upper Freehold Regional rails against the use of N.J.S.A. 18A:38-15 as legal authority
relevant here. Upper Freehold Regional continually reiterates its assertion that Millstone is
incorrectly brandishing N.J.S.A. 18A:38-15 and that Millstone has "pointed to [N.J.S.A. 18A:38-
15] as authority for it to send students to Red Bank Regional." Brief p. 9. This is revisionist
It is not Millstone, but rather Upper Freehold Regional, who first cited to N.J.S.A. history.
18A:38-15 as applying to this matter.
Upper Freehold Regional itself asserts that N.J.S.A. 18A:38-15 is the only method by
which Millstone may pay for its students' enrollment at Red Bank Regional. In its own petition,
Upper Freehold Regional states at least two times that N.J.S.A. 18A:38-15 controls, including:
"Millstone is only permitted to pay the tuition for these students to attend Red Bank Regional if
the Board does not furnish 'instruction in a particular high school course of study' which the
student seeks to pursue at Allentown High School. See N.J.S.A. 18A:38-15" and "Since it cannot
avail itself of N.J.S.A. 18A:38-15 due to the Board's similar course offerings at Allentown High
S c h o o l . . . " P e t i t i o n , ^ 1 5 , 2 6 . U p p e r F r e e h o l d R e g i o n a l c a n n o t n o w l e g i t i m a t e l y c l a i m t h a t
N.J.S.A. 18A:38-15 does not apply to Millstone when throughout the course of this litigation,
Upper Freehold Regional itself has deemed N.J.S.A. 18A:38-15 a lawful basis by which
Millstone may act.
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N.J.S.A. 18A:38-15 does not limit the boards of education to whom the statute applies.
b.
Upper Freehold Regional asserts that N.J.S.A. 18A:38-15 only applies to districts that
operate their own high schools. Nowhere does it say this in the statute. The language of N.J.S.A.
18A:38-15 is clear and unambiguous. Upper Freehold Regional reads into the statute language
As such, it is worth first through its lengthy and largely irrelevant history of the statute.
analyzing N.J.S.A. 18A:38-15 in detail as it currently reads:
Any board of education not furnishing instruction in a particular high school course of study, which any pupil resident in the district and who has completed the elementary course of study provided therein may desire to pursue, may, in its discretion, pay the tuition of such pupil for instruction in such course of study in a high school of another district.
The language clearly applies to "[a]ny board of education," not to any board of education that
does or does not operate a high school. It would be illogical to assert that any sending district
has no discretion under this broad statute to permit enrollment of its own students based on the
students' choice. Additionally, the statute references "any pupil resident in the district." Under
Upper Freehold Regional's interpretation, no Millstone student would ever benefit from the
choice afforded by this statute, but its own students in the very same high school could do so
because they live in the town which "owns" the high school. This is absurd.
Next, the statute's history referenced by Upper Freehold Regional reinforces the State's
policy to permit student choice in determining what vocational or career-based educational
objectives and opportunities they wish to pursue. In Lichtenberger v. Bd. of Educ. of Maywood,
1966 SLD 163, 165 (Comm'r Sept 26, 1966), cited by Upper Freehold Regional, the
Commissioner is explicit in stating that any agreement between a sending and receiving district
that "would automatically inhibit a proper adjustment of individual pupil needs would be
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The Commissioner stated of earlier inconsistent with the purpose of R.S. 18:14-6, supra."
versions of the law:
In order that pupils might not be restricted to a narrow choice of curriculum unsuited to their educational objectives, the Legislature authorized boards of education, even those operatim hish schools. to send individual pupils outside of the district to schools where their broad educational interests would be better served. Such interests have been construed to be furthered by full curriculums or broad courses of study. The presence or absence of a single subject matter area has never been considered to be of sufficient importance to a pupil's educational welfare to require a change of school, and in the judgment of the Commissioner the statute cannot be construed to so hold.
Id. at 165 (emphasis added). As the Commissioner was discussing state policy and a precursor to
N.JS.A. 18A:38-15, his decision is clear: all boards of education may send students elsewhere to
further educational objectives — even districts operating high schools. Id. Furthermore, this
decision highlights the discretion afforded the resident board of education to consider the request
The Commissioner (in this case also a sending district that did not operate a high school).
deferred to the decision of the resident district when he concluded that the resident district did
not act arbitrarily to deny the student's request to transfer because of the availability of a single
subject, German. Id.
Finally, if the statute is taken to another extreme, it could be read irrationally to mean that
boards of education without high schools could send their students anywhere technically. If
Millstone does not itself offer any high school instruction at all - as it clearly does not - then
another senseless reading of the statute would be that Millstone could send its students anywhere
it desires since it furnishes no instruction whatsoever.
The statute is clear, broadly applicable, and provides no limitation on which districts fall
under its terms. It applies to Millstone.
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Upper Freehold Regional's arguments are not supported by case law.
c.
Upper Freehold Regional's claim that N.J.S.A. 18A:38-15 only applies to districts that
operate their own high schools is entirely unsupported by case law. Upper Freehold Regional
cites no case law that even touches upon the subject.
Few recent decisions appear to have analyzed N.J.S.A. 18A:38-15. D.M. O/B/O A.M. v.
Bd. ofEduc. of City of Long Branch, et ai, 2000 WL 1661431 (N.J. Adm. Oct. 16, 2000); Bd. of
Educ. of City ofAsbury Park v. Bd. ofEduc. of Red Bank Reg'l Sch. Dist., 1997 WL 715018 (N.J.
Neither of these more recent cases can support a claim that what Adm. Mar. 27, 1997).
Millstone and Red Bank Regional have been doing for more than a decade is improper. In fact,
both cases confirm the legal authority upon which Millstone's and Red Bank Regional's actions
rest.
Notably, Upper Freehold Regional fails to cite Asbury Park. This failure is exceptional
as Asbury Park is one of the very few recent cases, aside from D.M., that analyzes N.J.S.A.
18A:38-15. In fact, D.M. cites to Asbury Park. Although the two cases examine other relevant
factors, like N.J.S.A. 18A:54-5 through 7 and the change in law regarding vocational school
status, their findings are clear and endure despite such changes: a resident district board of
education has the lawful discretion to allow its students to enroll at Red Bank Regional.
When Red Bank Regional ceased being a "vocational school" in or around 1991, the only
relevant implication of that change in designation was that students could no longer compel their
local board to pay their tuition to attend Red Bank Regional. When read together, these two
cases clearly provide that resident districts have the discretion to pay tuition to Red Bank
Regional and further that, under N.J.S.A. 18A:38-15, such discretion cannot be challenged
legitimately if the resident district school does not offer a State-approved Career and Technical
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Program, as does Red Bank Regional.2 Given the prestige of the International Baccalaureate
Degree Program, it seems this too would forestall any legitimate challenge to a board's
discretionary decision to approve attendance at Red Bank Regional when that board's resident
school does not offer this prestigious diploma program.
Neither D.M. nor Asbury Park addresses whether the districts operate or do not operate
high schools. The issue is not even raised, even in Asbury Park, where Asbury Park's claim was
against multiple sending districts to its high school -- districts which, by virtue of their
relationship with Asbury Park, clearly did not operate their own high schools.
In Asbury Park, this exact set of circumstances has in fact been before the Commissioner,
who stated explicitly that N.J.S.A. 18A:38-15 gave discretion to the local board. In Asbury Park,
the Commissioner affirmed that districts may approve their students' attendance at Career and
Technical Education programs, and then pay the tuition. Id. at * 4. Specifically, the Asbury
Park Board of Education had a sending-receiving relationship with multiple sending school
districts. It filed a petition in which it claimed that, because its sending districts sent some
students to Red Bank Regional, they were in violation of their sending-receiving agreements
with Asbury Park. Id.
The decision relied upon two sections of the law. First, district boards of education "may
establish and maintain vocational schools." N.J.S.A. 18A:54-5. If a board does so, it "shall
receive pupils from other districts so far as their facilities will permit and shall be entitled to
collect and receive from any sending district for the tuition of such pupils a sum not exceeding
the actual cost per pupil, as determined according to rules prescribed by the commissioner and
2 The Initial Decision, drafted by Kathleen Duncan, ALJ, and affirmed by the Commissioner, references vocational programs approved by the Department of Education and listed in the New Jersey Directory of Verified Occupational Programs as compared to non-approved programs. The nomenclature has changed. Today, these programs are referred to by the Department of Education as Career and Technical Education Programs. (http://www.nj.gov/education/cte/)
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approved by the state board." N.J.S.A. 18A:54-7. Second, under N.J.S.A. 18A:38-15, a district
may choose to pay tuition for students to attend any school offering a course of study that is
distinct from the one which they (or their receiving schools) offer.
The crux of Asbury Park, in relevant part here, is that N.J.S.A. 18A:38-15 grants school
districts the discretion to pay for their students' attendance at programs offered in other districts.
Although some state laws have changed with regard to vocational schools in general, this has not
changed: districts may choose to pay the tuition for their students to attend programs not offered
in their designated high school. In the instant case, this determination is left to Millstone alone,
not to Upper Freehold Regional.
Asbury Park did not pause over the fact that the districts at issue were sending districts to
Asbury Park. The Commissioner concluded that Asbury Park's sending districts did not violate
the sending-receiving relationship by paying for students to attend Red Bank Regional. Asbury
Park, at * 8. Indeed, "boards of education assign pupils to receiving high schools in accordance
Id. at * 4. with law. Parents and pupils decide where the pupils will actually go to school."
"[U]nder the clear provisions of N.J.S.A. 18A:38-15, parents and pupils have decided that the
pupils will attend particular, specialized vocational education programs offered neither at the
county vocational school nor at Asbury Park High School, the designated receiving school." Id.
at * 5. It is then within the discretion of the local board to pay for that tuition under N.J.S.A.
18A:38-15 if the local board does not offer the same high school program. Id. at * 8. This does
not violate the sending-receiving relationship.
Thus, Asbury Park is conclusive: "The legal basis for the attendance of pupils from the
correspondent districts at Red Bank Regional High School is both firm and clear." Id. at * 5.
The Commissioner has already determined that, with regard to attendance at Red Bank Regional
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in particular, "respondents [local school boards] and the parents residing within respondent
districts are acting under legislative authority, conferred upon them at N.J.S.A. 18A:38-15,
N.JS.A. 18A:54-5 to -7, when allowing their school children to attend the specialized vocational
programs offered by respondent Red Bank." Id. at * 8. The decision was written after the
change in status of Area Vocational-Technical School. It was also written after the Legislature
last changed the statute, as referenced in Upper Freehold's Regional's tortured and unsupported
recitation of the legislative history.
As is the case here, in Asbury Park, the districts whose students attended Red Bank
Regional did not have a formal sending-receiving relationship nor had they obtained
Commissioner approval, as Upper Freehold Regional claims is required. No such formal pre-
Instead, the only requirement is that Red Bank Regional have authorization is required.
approved Career and Technical Education educational programs that Upper Freehold Regional
does not, and that Millstone's students be enrolled at Red Bank Regional at the discretion of the
Millstone Board of Education.
The other recent case regarding N.J.S.A. 18A:38-15 states the same thing: local boards
hold the discretion. D.M. on behalf of minor child, A.M. v. Bd. of Educ. of City of Long Branch,
2000 WL 1661431, at *16. D.M. found that the students and parents could not force the district
to pay for enrollment at Red Bank Regional. Id. Millstone agrees — its students and parents
cannot force Millstone to permit enrollment, but rather Millstone itself holds the discretion. This
is why, in D.M, the ALJ noted that Red Bank Regional was no longer a vocational school itself
by law -- if it were, students would have had the right to force their districts to pay. However,
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the case does not change the fact that Millstone may choose to pay for its students at Red Bank
T
Regional.
In the only other relevant case cited by Upper Freehold Regional, Lichtenberger, the
Commissioner also affirmed the board's discretion to determine whether to pay for its student's
1966 SLD 163. Although in tuition elsewhere (under an earlier version of the statute).
Lichtenberger the local board denied the student tuition, the Commissioner agreed that this
decision was up to the discretion of that board and only examined the decision to determine if it
was arbitrary. Id. at 165. In Lichtenberger, the local board similarly had a contract to send its
students to another high school. Id. at 163. Despite this, the Commissioner maintained that it
was within the board's power to pay tuition and disagreed that "its contract with Bogota
precludes an application for a change of designation." Id. at 164. In fact, the Commissioner
further stated that "[s]uch a contract does not act as an irremovable bar to a valid request based
on sound educational considerations." Id. Although the language in the statute examined in
Lichtenberger was slightly different from the current version, and the statute has undergone
various iterations over the years, the discretion afforded the student's local district remains the
same.4 Lichtenberger's holding in this regard was explicit: the local board had the discretion to
deny or grant a student's request to attend another school at its funding as a "proper exercise of
its discretionary authority." Id. at 166.
3 Upper Freehold Regional cites D.M. and Bd. of Edue. of Union Co. Vocational-Technical Schools v. Bd. ofEduc. of Linden, EDU 11819-99 (Oct. 18, 2002), affd Comm'r Dec. 6, 2002 to argue that Red Bank Regional does not "enjoy" any special status as an Area Vocational-Technical School. Millstone does not dispute this: previously Red Bank Regional was entitled to State funding. However, the cases merely show that neither Red Bank Regional nor students may force local districts to pay tuition at Red Bank Regional, while additionally reinforcing Millstone's discretion to send its students and Red Bank Regional authority to receive them despite this changed status. In fact, Asbury Park was also decided after such status was removed. 4 In fact, the statute has the same structure in both its older and current versions, stating in essence that a resident student in a district may be permitted by the local district to enroll elsewhere on his or her district's public funds, if certain conditions are met. That has not changed.
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Upper Freehold Regional cannot and does not cite any case law that states what a
comparable course of study is, or that it (as the receiving district) plays any role in deciding what
is comparable or how that determination should be made. This is largely because of the very fact
that N.J.S.A. 18A:38-15 places the discretion solely within the home and paying district. Again,
the statute does not place any discretion in the hands of the district in which a student desires to
enroll, a receiving district in a sending-receiving arrangement, or even the students and parents.
Millstone is the only entity with the ability to make the decision to pay for its students to attend
Red Bank Regional, and Millstone is the only entity with the ability to make the decision as to
whether such courses of study are distinct from those to which its students have access. Upper
Freehold Regional has no lawful role or input here, and it has presented no case law that would
support its current interference.
B. N.J.S.A. 18A:54-7 Is Analogous And Serves To Reinforce State Policy Of Student Educational Choice.
Red Bank Regional is a comprehensive high school that operates specialized approved
Career and Technical Education Programs. Red Bank Regional is permitted to accept tuition
students into these programs, despite the fact that it is not an Area Vocational-Technical School
any longer. These statutes were never repealed and they underscore the State's interest in school
districts providing students with the choice to enroll in programs that will enhance and improve
their educational and career opportunities after high school.
As described in the cases above, because Red Bank Regional no longer has the status as
an Area Vocational-Technical School, students can no longer force their districts to pay.
However, as also shown above, N.J.S.A. 18A:38-15 has not been revised since the change in
status — other districts may still choose to pay for their students. The case law provides nothing
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different ~ while students and parents may not compel tuition payment at Red Bank Regional, it
is well-settled that a district may choose to do so.
Upper Freehold Regional ignores Asbury Park (which was decided after Red Bank
Regional lost any Area Vocational-Technical School status). Asbury Park emphatically confirms
the legal authority for Millstone's actions. Red Bank Regional's status as an Area Vocational-
Technical School is irrelevant to whether Millstone may send its students to Red Bank Regional.
Under N.J.S.A. 18A:38-15, it may do so, as stated explicitly by Upper Freehold Regional in its
own petition in this matter and in Asbury Park.
This Matter Is Unrelated To A Sending-Receiving Relationship.
Upper Freehold Regional confuses N.J.S.A. 18A:38-13 with N.J.S.A. 18A:38-15. Upper
Freehold Regional asserts that Millstone is establishing a new sending-receiving relationship
This is untrue, as Millstone is permitted to send its students as with Red Bank Regional.
described above, without obtaining Commissioner approval as is required in different
circumstances under N.J.S.A. 18A:38-13. Millstone has not actively sent its students elsewhere;
5 the students made the choice to apply to Red Bank Regional and, upon acceptance, enroll.
Furthermore, Upper Freehold Regional's footnote 4 on p. 18 of its brief asserts that
Millstone students should apply to Upper Freehold Regional for permission to enroll and have
this is entirely unreasonable and impractical, not to mention their tuition paid by Millstone
unsupported by a plain reading of the statute. The tuition money ~ whether going to Upper
Freehold Regional or Red Bank Regional ~ comes from the Millstone taxpayers. It is difficult to
5 Upper Freehold Regional argues incorrectly that Millstone may designate only one high school for its students. In fact the statute reads: "The board of education of every school district which lacks high school facilities within the district and has not designated a high school or high schools outside of the district for its high school pupils to attend shall designate a high school or high schools of this state for the attendance of such pupils." N.J.S.A. 18A:38-11. Millstone was under no legal obligation to designate a single high school for its students.
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imagine in what situations Upper Freehold Regional would ever grant Millstone students the
right to enroll elsewhere. One district is as capable as another in determining whether the Red
Bank Regional course of study was distinct from that offered by Upper Freehold Regional.6
Additionally, a district has no power to delegate its own discretion to another entity. There is
absolutely no support in the statutory or case law to support Upper Freehold Regional's
suggestion that it, and not Millstone, can authorize a student to attend Red Bank Regional.
UPPER FREEHOLD REGIONAL'S INTERPRETATION OF N.J.S.A. 18A:38-15 IS UNFOUNDED, AND UPPER FREEHOLD REGIONAL IGNORES THE APPROVAL STATUS OF THE RED BANK REGIONAL PROGRAMS.
III.
Upper Freehold Regional fails to address the Department of Education's approval of the
Red Bank Regional Academy programs. Doing so would shed light on the undisputed fact that
the Red Bank Regional programs at issue are approved by the State and constitute complete
courses of study, rather than a certain subject matter or class.
Upper Freehold Regional Ignores Red Bank Regional's Specialized Programs, Including Its Academies Approved By The Department As Career And Technical Education Programs, And International Baccalaureate Program.
A.
Upper Freehold Regional continues to disregard the most fundamental difference
between the programs it alleges it offers versus those offered by Red Bank Regional. Upper
Freehold Regional never addresses the fact that the Red Bank Regional programs in which
Millstone students are enrolled are approved by the State as Career and Technical Education
Programs and that Red Bank Regional offers the prestigious International Baccalaureate
program. This is crucial, and yet Upper Freehold Regional ignores it, likely because the State
approval lends credence to the fact that Red Bank Regional's programs are not simply "better
6 If this were not the case, no district could ever evaluate the course of study offered by the other district in which a student desired to enroll.
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than" those at Allentown High School. Rather Red Bank Regional's programs at issue here are
qualitatively different than those provided by Upper Freehold Regional, in large part, but not
exclusively, because they have been vetted and approved by the State itself.
Red Bank Regional's Academies are Career and Technical Education programs approved
by the Department of Education, while Upper Freehold Regional has not made any such claims
of the courses it purports are the same as Red Bank Regional's academies. D.M. noted that
"[s]ince vocational programs are required to be approved by the Department of Education and
once approved are listed in the New Jersey Directory of Verified Occupational Programs, and
since none of the districts herein have any approved vocational programs in the visual or
performing arts or any of the course sequences listed, if I were to address this issue I would
conclude that no hearing is required to determine that none of the local districts offers a
comparable type of program." D.M. O/B/O A.M. v. Bd. of Educ. of City of Long Branch, 2000
WL 1661431, at *18, fn. 3.
Likewise, here, no further discovery or hearing is necessary. Upper Freehold Regional
does not have State-approved Career and Technical Education programs in the areas in which
Millstone students are enrolled at Red Bank Regional. Each program at Red Bank Regional
attended by Millstone students is a State-approved Career and Technical Education program.
(See Galvao Cert., 1[4). In addition, Upper Freehold Regional does not host an International
Baccalaureate Diploma Program. Only Red Bank Regional does. (Wright Cert., Exhibit "A")
Upper Freehold Regional can point to no law that prohibits a sending district in a
sending-receiving relationship from choosing to permit and pay for students to attend other
schools with specialized Career and Technical Education programs, like the Red Bank Regional
Academies, or to a school with the opportunity to enroll in the prestigious International
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Baccalaureate Diploma program. The very fact that students must apply and be accepted into
Red Bank Regional is evidence to all districts sending students there that Red Bank Regional's
courses of study are unique opportunities.
The courses of study provided at Red Bank Regional are "courses of study" that Upper
Freehold Regional does not provide. Although Allentown High School may have some class and
extracurricular offerings in subject matter areas that are related to the Red Bank Regional
Academies, they are not "courses of study" in those areas. Neither does Allentown offer the
International Baccalaureate Diploma Program. Indeed, Upper Freehold Regional is attempting
to conflate "subjects" with "courses of study." No doubt, Upper Freehold Regional offers classes
on some similar subjects as does Red Bank Regional, but that is not the operative question. The
18A:38-15, that Your Honor, and ultimately the operative question under N.J.S.A.
Commissioner, must answer is whether Upper Freehold Regional offers the same courses of
study as Red Bank Regional. The answer, plain and simple, is that it does not.
N.J.S.A. 18A:38-15 provides that "[a]ny board of education not furnishing instruction in a
particular high school course of study, which any pupil resident in the district and who has
completed the elementary course of study provided therein may desire to pursue, may, in its
discretion, pay the tuition of such pupil for instruction in such course of study in a high school of
another district." Nowhere in the statute is there a standard or a set of criteria by which boards
are required to adhere.
Red Bank Regional provides Career and Technical Education programs that are not
available at Allentown. First, the Red Bank Regional Academies require potential enrollees to
apply for and be admitted to an Academy. (Wright Cert., Exhibit "H") Upper Freehold does not
have a similar application process. Red Bank Regional provides a greater array of Academies
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with a total of eight Academies, demonstrating a focus on vocational programs and a vast set of
resources devoted to them. (Wright Cert., Exhibit "H") Red Bank Regional's Academies
provide a broad array of classes and opportunities that are not found in Upper Freehold Regional.
The most important feature of the Academy programs, as compared to any courses at Upper
Freehold Regional, is that they "go together;" they are part of a specifically designed series and
sequence of educational opportunities, which are more in-depth and at a higher level than
anything offered at Upper Freehold Regional. (Wright Cert., Exhibit "H")
In addition, Red Bank Regional provides the renowned International Baccalaureate
Diploma Program, a highly regarded secondary educational opportunity that is not hosted by
Upper Freehold Regional and, therefore, not available for Millstone students unless they attend
(Wright Cert., Exhibit "H") Students may enter the International Red Bank Regional.
Baccalaureate Diploma Program in their junior year of high school, as it is a two-year program.
As such, students must be enrolled at Red Bank Regional to do so. This opportunity for students
in their junior year ~ alone — is sufficient to distinguish Red Bank Regional's courses of study
from Upper Freehold Regional's.
Participation allows students to obtain the prestigious International Baccalaureate
Diploma. Schools must be approved to offer the International Baccalaureate Diploma Program.
(Wright Cert., Exhibit "H") The International Baccalaureate Diploma Program is respected by
(Wright Cert., Exhibit "H") The leading universities across the country and world.
International Baccalaureate Diploma Program provides a specifically designed education that
will enable its participants to demonstrate to future educational institutions and career
opportunities that they are serious about their education and able to complete the rigorous
program. (Wright Cert., Exhibit "H") Nothing at Upper Freehold Regional's Allentown High
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School compares to the International Baccalaureate Diploma Program. (Wright Cert., Exhibit
"H")
In fact, a significant number of International Baccalaureate courses are available to its
participants. (Wright Cert., Exhibit "H") It is the cohesion of all of the courses, folded into the
framework mandated by the International Baccalaureate Diploma Program that differentiates this
from any generally covered subject matters by Upper Freehold Regional — even if the titles of
courses appear similar (e.g. Math). (Wright Cert., Exhibit "H")
The Red Bank Regional Academies that Millstone students have attended are programs
that the State has deemed coherent, productive courses of study, entitled Career and Technical
Education Programs. The International Baccalaureate Diploma Program is similarly cohesive
and specifically sequenced to provide a recognized rigorous course of study. Parents and
students understand that their choice to attend a program with such a course of study means a
rigorous and well thought out educational plan, designed to give them learnings to carry through
to the career level. Millstone has the discretion under N.J.S.A. 18A:38-15 to permit this and pay
for it, as do the other districts which similarly pay for their students' enrollment.
Upper Freehold Regional Conflates "Subjects" With "Courses Of Study."
B.
Upper Freehold Regional repeatedly refers to "subjects," when describing its own course
provisions with those offered by Red Bank Regional. To do so improperly conflates two entirely
distinct concepts. A "subject" is defined by Merriam Webster as an "an area of knowledge that is
studied in school" or "a department of knowledge or learning." The term of art "course of study"
is instead a structured, strategically ordered, intentioned set of courses and experiences, as
demonstrated by the statutes cited as examples below. English, mathematics, social studies, and
chemistry are subjects. Vocational programs that have a specific set of courses associated with
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them, a specifically recommended or required order of enrollment, and a scheduled rigor and
award of completion can be courses of study. It is thus obvious that most districts overlap in a
variety of subjects, while most districts do not offer the same courses of study in many areas.
Contrary to its own rules of statutory construction, Upper Freehold Regional replaces the
statutory language of "course of study" with "a subject" or "a single class." A "course of study"
is not simply a single or even multiple classes. Nor is a course of study to be confused with
providing some instruction in a specific subject matter, such as math. Instruction in a course of
study is different from furnishing a course or even several courses. It would be absurd to infer
that a board is prohibited from allowing a student to attend a school with a specialized course of
study merely because that board offers a few courses in that same subject matter. The only way
to interpret it then is for "course of study" to mean a full "program."
Simply providing a course, or even a few courses, is qualitatively different than a State-
approved Career and Technical Education Prosram or an internationally recognized
baccalaureate degree program. The entire purpose of obtaining approval of such programs is to
ensure that the course of study adheres to a set of standards, rigorously enforced. Upper
Freehold Regional argues that N.J.S.A. 18A:38-15 does not require the home school to provide a
better offering, but rather simply that it provide any offering. This is not the case. The
argument, repeatedly espoused by Upper Freehold Regional, is not supported by any case law,
statute or regulation.
A useful reference is in the definitions and requirements under the Carl D. Perkins Career
and Technical Education Act of 2006, as cited to by the State on its Career and Technical
Education Programs website. (Wright Cert., Exhibit "B") A list of components are included
that help create career and technical education programs that are considered effective programs
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of study. A program of study is defined on the website as "a comprehensive, structured approach
for delivering academic and career and technical education to prepare students for postsecondary
education and career success." Id. As such, this is the type of rigor and structure to which the
State adheres when approving career and technical programs, like those offered by Red Bank
Regional but not by Upper Freehold Regional. A program of study, analogous to a course of
study, must be something greater than offering a few classes in a subject. Career and technical
education programs must be comprehensive, structured, and designed to provide a clear pathway
for vocational education. Id.
It is unreasonable to assume that the Legislature would give a board of education the
discretion to approve a student's attendance at another school and then — without any further
guidance — would restrict it so much so that it would virtually prohibit any board of education
from being able to take advantage of that discretion. Additionally, Millstone's lawful choice to
pay for its students' enrollment at Red Bank Regional should not be equated with simply
acquiescing to every student's demand to attend another school. It is up to the Millstone Board
of Education to decide, and a student cannot force Millstone to do so.
This case is not about Red Bank Regional providing a "superior" education or "better"
classes. This case is about Red Bank Regional providing its students with concrete opportunities
to pursue coherent well thought out programs that speak to students' career goals, as per State
policy. Upper Freehold Regional may argue that Millstone cannot pay for its students to attend
the "Yale" of public schools. However, this is not what is happening here. Millstone is paying.
per the statute, for its students to attend specialized programs that are qualitatively different from
Upper Freehold Regional's alleged programs, and that include multiple "specifically designed
series and sequences of educational opportunities, which are more in-depth and at a higher level
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than anything offered at Allentown." (See Wright Cert., Exhibit "H"). Red Bank Regional's
Academies are not better in isolation, but rather are entirely different creatures, and are
"specialized Academy vocational Career and Technical Education programs approved by the
State of New Jersey, as well as the International Baccalaureate Diploma Programme ("IB
Program"), which offers students the prestigious IB Program Diploma." {Id.) What makes the
Academies desirable to students is not their caliber per se, but rather their specific approved
courses of study in certain identified vocational areas.
A "course of study" has no specific definition in this section of the law. However, it is
used in other sections of the school law to mean a set of classes and other educational elements
that are coherent or put together in a fully-intentioned manner. For example, where a substance
abuse "course of study" is mandated for each school grade, the statute lays out multiple strategic
components of such a "course of study" including: "Detailed, factual information regarding the
physiological, psychological, sociological and legal aspects of substance abuse; Detailed
information concerning the availability of help and assistance for pupils and their families with
chemical dependency problems; Decision making and coping skills; and, the development of
activities and attitudes which are consistent with a healthy life style. The guidelines shall include
model instructional units, shall define specific behavioral and learning objectives and shall
recommend instructional materials suitable for each grade level." N.J.S.A. 18A:40A-2 (emphasis
added). This shows that a "course of study" is defined by a cohesive program with demonstrated
goals, components and structure to be offered over more than just a single year. In another
statute regarding higher education and loan payment, "[ajpproved course of study" is defined as
"an undergraduate program leading to a bachelor's degree offered by a four-year public or
independent institution of higher education; or a graduate program leading to a master's degree,
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which is offered by a public or independent institution of higher education . . N.J.S.A.
18A:71B-89 (emphasis added). The emphasized portions additionally indicate that a "course of
study" connotes a program that leads to a final goal, as opposed to a scattered curriculum. It is
this very sequence of educational opportunities that differentiates Red Bank Regional's programs
of study from those at Allentown.
CONCLUSION
For the foregoing reasons, the Millstone Board of Education respectfully requests that
Upper Freehold Regional's motion for summary decision be denied.
PORZIO, BROMBERG & NEWMAN, P.C. Attorneys for Respondent Millstone Board of Education
llij By: Vito A/uagliar^i, J]
Dated: September 15, 2016
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PORZIO, BROMBERG & NEWMAN, P.C. 100 Southgate Parkway Morristown, NJ 07962-1997 (973)538-4006 Attorneys for Respondent Millstone Township Board of Education
UPPER FREEHOLD REGIONAL BOARD BEFORE THE COMMISSIONER OF EDUCATION OF EDUCATION,
OAL DOCKET NO.: EDU-06068-2016 AGENCY REFERENCE NO.: 108-4/16
PETITIONER,
v.
MILLSTONE TOWNSHIP BOARD OF EDUCATION AND RED BANK REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION,
CERTIFICATION OF SERVICE
RESPONDENTS.
I, Jennifer Ciaburri, do hereby certify:
I am a senior paralegal employed at the law firm of Porzio, Bromberg &
Newman, P.C., attorneys in the within matter for Respondent Millstone Township Board of
Education.
On September 15, 2016, I caused to be served via electronic and regular mail a 2.
true and correct copy of Millstone's Opposition to Petitioner's Motion for Summary Decision to
the individuals below at their last known address:
Robert Lorfink, Esq. Fogarty & Hara
21-00 Route 208 South Fair Lawn, NJ 07410
rlorfmk@fo gartyandhara. com
Bruce Helies, Esq. 2517 Highway 35
Building K, Suites 201-202 Manasquan, New Jersey 08736
3460628
I hereby certify that the foregoing statements made by me are true. I am aware that if
any of the foregoing statements made by me are willfully false, I am subject to punishment.
P x ̂ ^ fe
o ifer Ciaburri Je
Dated: September 15, 2016
3460628 2
