LN and TN obo TN v Freehold Regional BOE | Case 11456-19 | 2019-08-29

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW ORDER ON EMERGENT RELIEF OAL DKT. NO. EDS 11456-19 AGENCY DKT. NO. 2020-30524 L.N. AND T.N. ON BEHALF OF T.N., Petitioners, v. FREEHOLD REGIONAL BOARD OF EDUCATION, Respondent. Emeka Nkwuo, Esq., for petitioners (Lomurro Law, attorneys) Mark G. Toscano, Esq., for respondent (Comegno Law Group, P.C., attorneys) BEFORE JOSEPH A. ASCIONE, ALJ: STATEMENT OF THE CASE In this matter, petitioners bring an action for Emergent Relief against the Freehold Regional Board of Education (respondent) to: Continue the placement of T.N. (their son) at either Colts Neck (Colts Neck) High School or Freehold (Freehold) Township High School pending the outcome of the due process hearing. The matter was filed in the Office of Special Education Programs on August 9, 2019 , then transmitted to the Office of Administrative Law (OAL) on August 21, 201 9, as a contested case. The matter was heard on August 29, 2019, at the Trenton OAL offices in Mercerville.

OAL DKT. NO. EDS 11456-19 2 BACKGROUND Petitioner, T.N., a ged fourteen, at the time of the incident, is a Principal’s List, Honor’s high school student. In school year ending June 2019, he attended Colts Neck, participating in the Junior Reserve Officer Training Program ( JRROTC). On April 17, 2019, he received a discipline due to “negative language ” found in his geometry notebook about fellow JRROTC students. A contemporary awards ceremony provide d T.N. no awards and failed to promote him . The “negative language” is the discovery of a list of fellow JRROTC students with references to “noose,” “hang,” and “to see how a battle can be .” The investigation revealed T.N.’s recently accessed a website, “Ammunition Depot,” and gun images were on his phone. T.N. acknowledged to Freehold personnel conflicting statements regarding his access to guns at home. The respondent’s discipline included a temporary suspension. “Child find” dictated referral to the child study team to determine the need for special education services , outside evaluations. This resulted in a placement of home schooling through the end of the school year. The respondent now seeks placement at an out of district school, the petitioners oppose the suggested placement. On August 27, 2019, Freehold provided an IEP for T.N. as an “other health impaired” student. As a result of the classification, T.N. is entitled to special education ; however, due to his diagnosis as “Impulse Control Disorder,” Freehold has recommended out of district placement. Prior to the issuance of the IEP, a due process hearing followed seeking emergent relief regarding placement for the current school year. Respondent disputes a stay-put placement at either Colts Neck or Freehold High School. Respondent advises the tribunal of criminal charges still pending against T.N. , the petitioners advised the criminal charges are adjourned pending dismissal in six months . Respondent’s position is, if the parents are not interested in any of the proposed out -of-district placements, then “stay put” would be home schooling for the current school year. After initial review of the application for emergent relief, the tribun al had concern as to the dearth of information contained with the petition. Accordingly, on August 27, the tribunal wrote to counsel for the parties, requesting any supplemental certifications by August 28, for petitioner and August 29 for respondent. None were received from

OAL DKT. NO. EDS 11456-19 3 petitioner. A t the hearing the tribunal afforded petitioner the opportunity to submit the police investigation report. The tribunal did not accept T.N.’s psychologist’s report that T.N. could go back to school, as the tribunal found it would not be of assistance in reviewing the actions of Freehold. Freehold did submit on August 28, 2019. T he documents related to their suspension and home -study placement and are included as Exhibit R-1 with this Order. FACTUAL FINDINGS Based on the evidence submitted by the petitioner s, I cannot conclude that the actions of the respondent in imposing discipline upon L.N. may have been arbitrary , capricious, without a rational basis, or induced by improper motives. At this point, all that is contained in the record of petitioner’s case is the petitioner's counsel’s arguments that L.N. should not be placed in an out -of-district school or home schooled . I respect counsel's faith in his client. However, I FIND there is simply not enough objective evidence in the record before me upon which I can base a finding that petitioner ’s home schooling creates an irreparable injury; that petitioner’s rights are well settled; that petitioner would be successful in prevailing on the merits of the underlying claim ; and that the balancing of the interest favors L.N. Further, I CANNOT FIND the placement is necessary for the safety of the school; however, I FIND under the totality of the circumstances, Freehold’s actions are n ot arbitrary, capricious, or induced by improper motives. I FIND the April 17, 2019, discipline resulted in a suspension and a “home school” placement. This is the “stay put” placement for L.N. at this time. I FIND petitioners have not satisf ied the standards of N.J.A.C. 6A -12.1(e). Emergent relief cannot be granted.

OAL DKT. NO. EDS 11456-19 4 LEGAL ANALYSIS Petitioners filed an application for emergent relief and as such it is subject to the procedures and conditions of N.J.A.C. 6A:14-2.7; N.J.A.C. 6A -12.1(e); and Crowe v DeGioia, 90 N.J. 126, (1982). Petitioners are required to meet the following criteria: 1. The petitioner will suffer irreparable harm if the requested relief is not granted; 2. The legal right underlying the petitioner's claim is settled; 3. The petitioner has a likelihood of prevailing on the merits of the underlying claim; and 4. When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the respondent will suffer if the requested relief is not granted. This matter is being considered under the “stay put” standard. The “stay put” provision holds in part “during the pendency of any proceedings . . . the child shall remain in the then-current educational placement of the child.” 20 U.S.C. § 1415(j). The April 17, 2019, discipline resulted in a suspension and a “home school” placement. The obligation of the stay -put provision can be satisfied by the continued placement of home schooling . Freehold has recently suggested numerous alternative placements which the parents have not accepted. Home schooling is not ideal for this honor student; however, Freehold has not limited the parents choices to only home schooling. Home schooling is a r estricted environment, it affords some educational opportunity but is limited. Unless agreement among the parties is reached, it must remain the current placement.

OAL DKT. NO. EDS 11456-19 5 Local boards of education are responsible for protecting the health safety and welfare of its students and ensuring the orderly conduct of the academic process. Goss v. Lopez , 419 U.S. 656 (1975). To accomplish this, such boards are empowered to establish rules of conduct and impose discipline to enforce such rules. It is established law that the actions of a board of education which lie within the area of discretionary powers, especially as it relates to matters of student discipline, cannot be upset unless there is a showing that the discipline imposed was arbitrary, capricious, without a rational basis, or was induced by improper motives. J.M. vs. Hunterdon Central Reg. H.S., 96 N.J.A.R.2d (EDU) 415, 419 (citing Kopera v. West Orange Bd. of Educ. , 60 N.J. Super. 288 (App. Div. 1960). I ORDER “home placement” be the stay -put placement for L.N. The emergent application as to the placement is DENIED. I ORDER the emergent application related to L.N.’s placement fa ils to satisfy emergent application criteria and is DENIED, and further ORDER the respondent to place L.N. at home, pending further action in this proceeding. This order on application for emergency relief shall remain in effect until issuance of the decision in the matter. The parties will be notified of the scheduled hearing dates. If the parent or adult student feels that thi s decision is not being fully implemented with respect to program or services, this concern should be communicated in writing to the Director, Office of Special Education Programs. August 29, 2019 DATE JOSEPH A. ASCIONE, ALJ Date Received at Agency: ______________________ Date Sent to Parties: ______________________ /lam