J.S. and S.S., Etc. v. Board of Education of the West Morris Regional High School District, Etc.

NOT FOR PUBLICATION WITHOUT THE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

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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.

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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

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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.

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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.

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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)).

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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

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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

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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.

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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

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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:

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[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.

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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.

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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.

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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.

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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.

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