TL obo RB v West Deptford Twp BOE | Case 04914-21 | 2021-06-14

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW ORDER DENYING EMERGENT RELIEF OAL DKT. NO. EDS 04914-21 AGENCY DKT. NO. 2021-32934 T.L. O/B/O R.B., Petitioner, v. WEST DEPTFORD TOWNSHIP BOARD OF EDUCATION, Respondent. __________________________ T.L., parent, pro se, on behalf of R.B. Caitlin E. Pletcher , Esq., for respondent (Florio, Perrucci, Steinhardt, Cappelli, Tipton & Taylor, LLC, attorneys) BEFORE SUSAN L. OLGIATI, ALJ STATEMENT OF THE CASE The petitioner, T.L. on behalf of her now adult son R.B.1, filed a petition with the Office of Special Education Policy and Dispute Resolution , New Jersey Department of 1 R.B. was seventeen years old when the petition was filed. He turned eighteen years old on June 11, 2021, the date on which oral argument was heard in this emergent matter. During oral argument, petitioner produced a June 9, 2021, email from R.B. stating, “I give my mom [T.L.] permission to work on my behalf for the due proc ess procedure and an y interactions involving West De fort [sic] high school. ” [R.B.] Ex. P-2. On June 14, 2021, petitioner provided a screen-shot of a signed version of this email. Ex. P-4.

OAL DKT. NO. EDS 05955-20 2 Education, seeking an order for emergent rel ief allowing R.B. to par ticipate in the graduation ceremonies of West Deptford High School (WDHS). PROCEDURAL HISTORY On or about June 9, 20 21, petitioner L.T. filed a request for emergent relief allowing R.B. to particip ate in graduation cer emonies. She also filed a due pro cess action seeking for the school district to accept all ass ignments along with allowing R.B. to participate in graduation ceremonies . On or about June 9, 2019, t he request for emergent relief and th e due process were transmitted to the Office of Admini strative Law (OAL) . On June 10, 20 21, the respondent, West Deptford Township Board of Education (the Board or District ) filed a letter brief in opposition to the request for emergent relief and support ing certification of Dr. Brian C. Gismondi, principal of WDHS. Oral argument was held on June 11, 20 21, and the record was c losed on June14, 2021, upon receipt of signed email authorization from R.B.. FACTUAL DISCUSSION Many of the essential facts in this matter are not in dispute. R.B. is in the twelfth grade at WDHS. He has attended WDHS since ninth grade. R.B. ha s an A ccommodation Plan for the 2020 -2021 school year under 504 of the Rehabilitation Act of 1973 (504 Plan) based on his physical/mental impairment of Attention Deficit Disorder/Hyperactivity. Ex. R-N. The 504 Plan provides for the following accommodations:  Extended time for tests, assignments and projects, if requested by student;  Teacher will cont act parent if two or more assignments a re missing in a given week;  Counselor will suggest and support organizational strategies;  Long term assignments (lasting three days or more) will be chunked with identifying in dividual due dates for each section;  Any cor rection will be conducted in a one -to-one private setting, if possible;

OAL DKT. NO. EDS 05955-20 3  Check for understan ding of di rections and re -state directions, if requested by the student. Id. Board Policy 5460 regarding High School Graduation requires graduating student to have earned no fewer than one hundred tw enty credits in courses designed to meet all of the New Jersey Student Learning Standards. Ex. R-B. R.B. has not earned the 120 minimum credits required of graduating students.2 On September 29, 2020, R.B. ’s math teacher emailed T.L. to advise t hat R.B. was failing math and had multiple opportunities to “make up the zeros.” Ex. R-D. On October 14, 2020, Dr. Gismondi, sent T.L. an email confirming their meeting and advising that R. B. would need to pass all of his classes and that if he failed one , he would not have enough credits to graduate. Ex. R-E. For the second qua rter marking period, R.B. received failing grades of “59” in four classes. Ex. R- H. By letter dated February 5, 2021 , T.L. was advised the R.B. lost credit for his Photography classes due to absences and of credit completion. Ex. R-I. By email dated March 4, 2021, T.L. was advised that R.B. was in academic danger as his “academic progress to date causes some concern as to whether he will meet all the requirements needed to graduate in June 2021.” Ex. R-J For the third quarter marking period, R.B. failed his math class (Concepts of Math) but passed his other classes. Ex. R-K. 2 The June 10, 20 21, certification of Dr. Gismondi indicates that to date , R.B. had e arned 100 credits . However, a t oral a rgument, counsel for the Bo ard clarified that R.B. was 7.5 credits sh ort of the graduation requirement.

OAL DKT. NO. EDS 05955-20 4 By emails dated April 14, 2021, May 11, 2021, and May 18, 2021, T.L. was advised that R.B. was in “graduation danger” as his “academic progress to date c ontinues to cause concern as to whether he wil l meet all the requirements needed to gra duate in June 2021.“ T.L. was also advised to encourage R.B. to log into all Z OOM clas ses, complete homework and class assignments, and study har d for t ests and quizzes and to contact teachers if extra help was needed. Ex. R-L and R-M. For the final grade, R.B. received failing grades in math (64) and forensics (61). Board Policy 5200 regarding attendance provides that consequences for unexcused absences from school may include the denial of a student’s participation in co-curricular activities. Ex. R-P. Board Policy 5461 regarding commencement activities provides that criteria for exclusion from graduation year a ctivities concern consistent behavioral patterns. The policy further provides t hat no pupil shall be barr ed from participation in graduation ceremonies for arbitrary or discriminatory reasons. Ex. R-Q. Arguments of the Parties T.L. argued that R.B. had health issues this year including Covid and mono and that he also experienced mental health issues and is receiving therapy. She contends she knew he was f ailing, but not because of missing assignments. WDHS was not providing him with the supports outlined in his 504 Plan. He failed his math c lass by one point. If T.L. had been notified of the missing assignments on a weekly basis, R.B. would have been successful. He would have passed if he had been able to make up missed work. Additionally, R.B.’s therap ist left phone messages with the gu idance counselor on or a bout June 4 and June 8, 2021 , to explain R.B.’s absences f rom school.3 3 Based on T.L.’s arguments/testimony it appears that the supporting documentation from R.B.’s therapist has not yet been provided to the Board.

OAL DKT. NO. EDS 05955-20 5 The Board argued that petit ioner has no legal right to the emergent relie f she seeks. R.B. does not meet the credits required for graduation. He failed both his math and forensics classes. He must make up 5 credits in math and 2.5 credits in another course.4 The Board argues that in addition to failing to meet the graduation requirements relating to credits/grades R.B. is also ineligible to gr aduate because he must participate in “credit recovery” due to his absences. The Board conten ds credit recovery is required when a stud ent has more than twenty-three absences in a particular class. R.B. has over forty-four days of full absences and additional absences in certain individual classes. The Board disputes that all of R.B. ’s absences are explained by his medical/mental health issues. The Board further argues that there are other stud ents a t WDHS who are prohibited from pa rticipating in the graduation ceremony due to failure to meet the graduation requirements for grades and credit. The Board contends it has never permitted a student to “walk” in graduation if he/she had not met the graduation requirements relating to grades and credits. LEGAL ANALYSIS AND CONCLUSIONS In accorda nce with N.J.A.C. 1:1-12.6, emergency relief may be granted “where authorized by law and where irreparable harm will result without an expedited decision granting or prohibiting some act ion or relief connected with a con tested case…” A determination in thi s matter is further gove rned by the standard for em ergent relief s et forth by our Supreme Court in Crowe v. DeGioia, 102 N.J. 50 (1986), as follows: The judge may order emergency relie f ….if the judge determines from the proofs that: 1. The petitioner will s uffer irreparable harm i f the requested relief is not granted. 2. The legal right underlying the petitioner’s claim is settled. 3. The petitioner has a likelihood of succ ess on the merits of the underlying claim; and 4. When the e quities and interests of the partie s are balanced, the peti tioner will suffer grea ter harm than t he respondent will suffer if the relief is not granted. 4 The Board contends that it further accommodated R.B. by allowing him to take a forensics class, an on-line course, as an opportunity to earn additional credits.

OAL DKT. NO. EDS 05955-20 6 The moving party must satisfy all four prongs of this standard to establish an entitlement to emergent relief. Id. at 132-35. Harm is irreparable when there can be no adequate after -the-fact remedy in law or in equity; or where monetary damages cannot a dequately restore a lost experience. Nabel v. B d. of Educ. of Hazlet , EDU 8026 -09, Initial Decision on Application for Emergent Rel ief, (Ju ne 24, 2009) <http://njlaw.rutgers.edu/collections/oal/>. A student’s attendance at his high school graduation, along with his peers is a once-in-a-lifetime opportunity. There is no meth od for recreating this at a later ti me. See C.E o/b/o N.E. v. Lawrence Twp. Bd. of Educ., EDS 6067-10, Decision on Emergent Re lief, (June 17, 20 10) <http://njlaw.rutgers.edu/collections/oal/> and C.D. o/b/o S.C. v. Mainland Regional Bd. of Educ. , EDS 08459-17, Deci sion on Emergent Relief, (June 1 6, 201 7) <http://njlaw.rutgers.edu/collections/oal>. See also, C.F. o/b/o A.H. v. Neptun e T wp. Bd. of Educ ., EDS 08134 -19, Final Decision on Emergent Rel ief, (June 2 1, 20 19) <http://njlaw.rutgers.edu/collections/oal>. Accordingly, I CONCLUDE that petitioner has demonstrated that R.B. will suffer irreparable harm if the request for relief is not granted. However, petitioner must also demonstrate that R.B.’s right to participate in the graduation ceremony, despite failing to meet the graduation requirements, is settled. In fact, the la w is settled that a board of e ducation has broad discretion to take action needed to effectively operate its public schools. The Commissioner will not overturn the decision of a local board in the absen ce of a finding that the action below wa s arbitrary, capricious, or unreasonable. T.B.M. v. Moorestown Bd. of Educ. , EDU 2780-07, Initial Decision (February 6, 2008) <http://l awlibrary.rutgers.edu/oal/search.html>, citing Thomas v. Morris Twp. Bd. of Educ. , 89 N.J. Super. 327, 332 (App. Div. 1965 ), aff’d, 46 N.J. 581(1966). The Commissioner will not substitute his judgmen t for that of the boa rd of education, whose exercise of i ts discre tion may not be disturbed unless shown to be “patently arbitrary, withou t rational basis or induced by improper motives. Kopera v. W. Orange Bd. of Educ., 60 N.J. Super. 288, 294 (App. Div. 1960).

OAL DKT. NO. EDS 05955-20 7 Our courts have held that “[w]here there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believ ed that an erroneous conclusion has been reached. Bayshore Sewage Co. v. Dep’t of Envtl. Prot. , 122 N.J. Super. 184, 1 99–200 ( Ch. Div. 1973), aff’d, 131 N.J. Super. 37 (App. Div. 1974). Accordingly, I CONCLUDE that petitioner is unable to demonstrate that the law is settled in R.B.’s favor. Similarly, the applicable arbitrary and capricious legal standard make petitioner’s likelihood of success on the merits doubtful. The Board policy requiring graduating students to earn no fewer than 120 credits is consistent with State standards and is therefore reasonable. Further, while the Board does not expressly address in its polic ies the issue of participation in the graduation ceremony based on fail ure t o meet necessary grade/credit requirements, it’s stated practice of prohibiting same is similarly reasonable. T hus, upon careful review of the documents submitted and the argument s made, petitioner is not likel y able to demonstrate t hat the decision of th e B oard lacks a rational basis or that the Board’s actions were in duced b y improper motives, or wer e taken in utter disregard of the circumstances before it. Moreover, the record reveals that respon dent communicated with petitioner on multiple occasions throughout the 2020-2021 school year to advise her of the concerns regarding R.B.’s academic progress or lack thereof and the potential danger it posed to his ability to meet the requirements necessary for graduation in June 2021. Accordingly, I CONCLUDE that petitioner has failed to demonstrate a likelihood of success on the merits. Finally, in balancing the equities and interests of the parties, I CONCLUDE that the scales tip in favor of the Board and against the relief s ought by petitioner. While I am not unsympathetic to petitioner’s arguments and fully appreciate the disappointment that R.B. may experience in not being able to particip ate in the graduation ceremonies

OAL DKT. NO. EDS 05955-20 8 along-side his classmate s, and further appreciate the di fficulties faced by certain students during the 2020-2021 school year, the “right” of petitioner is less weighty than those of the respondent as participating in t he ceremony is a privilege. 5 Thus, R.B.’s inability to participate in such an event does not, on balance, rise to the severity of harm warranting the extraordinary relief requested. Respondent, however, has a substantial and valid interest in ensuring the orderly operation of the activities of its schools. See, C.E o/b/o N.E.. v. Lawrence Twp. Bd. of Educ., EDS 6067-10, Decis ion on Emergent Re lief, (June 17, 20 10) and C.D. o/b/o S.C. v. Mainland Regional Bd. of Educ., EDS 08459-17, Decision on Emergent Relief, (June 16, 2017). Accordingly, I am constrained to CONCLUDE that the request for emergent relief must be denied. ORDER Having concluded that the petitione r has failed to meet all four prongs of the Crowe v. DeGioia standard, the request for emergent relief is DENIED. 5 I note that emails pr oduced by petit ioner demon strate th at while prohibited from participating in the graduation ceremon y, R.B. was allowed to participate in other “senior” activities such as the yearbook dedication and senior pic nic. Ex. P -1 at 3. These emails f urther suggest that if R.B. takes his two courses, math and a n on-line course , for credit over the summer he could potential ly “graduate” (i.e. meet the graduation credit requirements) in August.

OAL DKT. NO. EDS 05955-20 9 This Order on applica tion for emergency relief shall remain in effect un til the issuance of the decision o n the merits in this matter. A telephone prehearing conference is scheduled for June 2 1, 2021, at 4:00 PM, A formal hearing n otice advising of the dial-in information fo r this telephone prehearing will be emailed t o the parties under separate cover. June 14, 2021 DATE SUSAN L. OLGIATI, ALJ Date Received at Agency: ________________________________ Date Sent to Parties: /lam

OAL DKT. NO. EDS 05955-20 10 LIST OF EXHIBITS Joint J-1 June 10, 2021, email from E. Quidlen to T.L. re: R.B.’s final grade in forensics For petitioner P-1 June 11, 2021 , email between K. Clark and T.L. re: R .B.’s ineligibility for graduation P-2 June 9, 2021, email authorization from R.B. to T.L. at pg. 2 P-3 Screen shots from POWERSCHOOL of R.B.’s grades P-4 Screen shot of signed version of the June 9, 2021email authorization For respondent R-A Transcript R-B Board Policy 5460 (High School Graduation) R-C Email chain dated July 2, 2020, between Gismondi and T.L. R-D Email dated September 29, 2020, from C. LoPresti to T.L. R-E Email dated October 14, 2020, from Gismondi to T.L R-F Report Card November 16, 2020 R-G Email November 17, 2020, from T.L. R-H Report Card February 1, 2021 R-I February 5, 2021, attendance/credit completion letter R-J Email March 4, 2021, re: Academic Danger R-K Report Card April 13, 2021 R-L Email April 14, 2021, re: Graduation Danger R-M Emails May 11 & 18, 2021, Graduation Danger R-N 504 Plan R-O Dates of Attendance for Concepts of Math R-P Board Policy 5200 (Attendance) R-Q Board Policy 5461 (Commencement Activities)