TR obo LA v Salem City BOE and Camden BOE | Case 16571-19 | 2019-12-03

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION EMERGENT RELIEF T. R. ON BEHALF OF L.A., OAL DKT. NO. EDS 16571-19 Petitioner, AGENCY DKT. NO. 2020-30944 v. SALEM CITY BOARD OF EDUCATION AND CAMDEN CITY BOARD OF EDUCATION, Respondents. T.R., petitioner, pro se Michael A. Pattanite, Jr. , Esq., for respondent , Salem City Board of Education (Lenox, S ocey, Formidoni, Giord ano, Cooley, Lange & Casey, LLC, attorneys) Samantha L. Price, Esq., for respondent, Camden City Board of Education Record Closed: December 2, 2019 Decided: December 3, 2019 BEFORE SARAH G. CROWLEY, ALJ:

OAL DKT. NO. EDS 16571-19 2 STATEMENT OF THE CASE Petitioner T.R., on behalf of minor child , L.A., seeks return of child to out -of- district placement, with transportation and compensatory education, by the Salem City Board of Educ ation. The District responded that the child is no longer a resident of Salem City and is therefore not entitled to a free and appropriate education (FAPE) in the Salem City School District (Salem). The petitioner claims to have been evicted and currently homeless and residi ng temporarily with her sister in Camden City. Camden City Board of Education (Camden) maintains that until the child is enrolled in Ca mden City, they have no obligation to provide an y services. The petitioner seeks an o rder for emergent relief requiring Salem to provide transportation to the last agreed upon IEP, which places L.A. at Creative Achievement Academy (Creative). PROCEDURAL HISTORY On November 25, 2019, petitioner filed an emergent pro se due process petition with the Office of Controversies and Disputes of the New Jer sey Department of Education (Department). On November 25, 2019, the emergent matter was transmitted to the Office of Administrative Law (OAL). Opposition was filed by Camd en and Salem on November 29, 2019. Oral argument was held on December 2, 2019. The attorneys for Camden and Sa lem were present and the petitioner appeared by telephone. The motion for emergent relief is now ri pe for consideration. The record closed following the oral argument on December 2, 2019. FACTUAL DISCUSSION Most of the pertinent facts in this case are not in dispute. T.R. and her minor child L.A. lived within the Salem City District at the beginning of the 2019-2020 school year. The IEP dated April 25, 2019, placed L.A. at the Creative Achievement Academy in Vineland, New Jersey for the 2019-2020 school year. Sometime in the fall of 2019,

OAL DKT. NO. EDS 16571-19 3 T.R. was evicted from their home in Salem City, and moved temporarily to a family/friend in Camden City, New Jersey. The District terminated the student’s placement at Creative due to non- attendance. The District maintains that they tried to reach out to T.R. and T.R. likewise claims to have made numerous calls to the district about her eviction and transportation of L.V. to Creative. During this time, the District prepared a new IEP with in-district services. However, it was never provided to, or agreed to by the parent. The District did concede that they were on notice that the family was no longer residing in Salem, as their truancy officer had gone to the home several times and there was mailed piled up and no one living there. Based on a review of the pleadings and the arguments presented by the parties, I FIND the following as FACT: 1. L.A. and his family were residing in Salem City prior to being evicted from their home on October 3, 2019. 2. The last agreed upon IEP for L.A. placed him at an out-of-district placement at Creative in Vineland, New Jersey. 3. Salem provided busing to and from the out-of-district placement. 4. The family is temporary residing with a family member in Camden City, New Jersey. 5. L.A. has not had any school services and has not been to school in over two months.

OAL DKT. NO. EDS 16571-19 4 LEGAL ANALYSIS AND CONCLUSIONS The regulations go verning controversies and disp utes before the Commissio ner of Education provide that “[w] here the subject matter of the controversy is a particular course of action by a district board of education . . . the petitioner may include with the petition of appeal, a separate motion for emergent relief or a stay of that action pending the Commissioner's fin al decision in the contested case.” N .J.A.C. 6A:3 -1.6(a). The regulations further provide that the Commissioner may “[t]rans mit the motion to the OAL for immediate hearing on the motion.” N.J.A.C. 6A:3-1.6(c)(3). At such a hearing, the petitioner must show that he or she satisfies the followin g four standards: 1. The petitioner will suffer irreparable harm if the requested relief is not granted; 2. The legal right underlying petitioner's claim is settled; 3. The petit ioner has a likelihood of prevailing on th e merits of the underlying claim; and 4. When the equities and interests of the parties are balanced, the petition er will su ffer greater harm than the respondent will suffer if the reque sted relief is not granted. N.J.A.C. 6A:3-1.6(b); citing Crowe v. DeGioia, 90 N.J. 126 (1982). The petitioner must prove each of these standards by clear and convincing evidence . Garden State Equal. v. Dow, 216 N.J. 314, 320 (2013) (citation omitted). I. Irreparable Harm As the Supreme Court explained in Crowe, 90 N.J. 126, “[o]ne principle is that a preliminary injunction should not issue except when necessary to prevent ir reparable harm.” Id. at 132 [citing Citizens Coach Co. v. Camd en Horse R.R. Co., 29 N.J. Eq. 299, 303 (E. & A. 1878) ]. Indeed, the purpose of emer gent relief i s to “prevent some

OAL DKT. NO. EDS 16571-19 5 threatening, irreparable mischief, which should be averted until oppo rtunity is afforded for a full and deliberate investigat ion of the cas e.” Ibid. [quoting Thompson ex rel. Bd. of Chosen Freeholders v. Paterson, 9 N.J. Eq. 624, 625 (Sup. Ct. 1854)]. The threshold standard for irreparable harm in education is showi ng that once something is lost, it cannot be regained. M.L. ex rel. S.L. v. Bd. of Educ. of Ewing, EDU 4949-09, Initia l Decision (June 15, 2009), modified, Acting Comm’r (June 15 , 2009), http://njlaw.rutgers.edu/collections/oal/. L.A. is a child entitled to special education services in Salem City, which was the l ast d istrict of residence, prior to the famil y’s eviction. L.A. had received no education for the past two months, and I conclude that this is indeed, irreparable harm. He has no transportation, and the District unilaterally terminated his out-of-district placement. It is undisputed that Salem is the last district of residence and he is currently not being provided any education. Accordingly, I CONCLUDE that the harm to L.A. is irreparable. II. Settled Legal Right Next, emergent rel ief “should be withheld wh en the legal right un derlying plaintiff’s claim is unsettled.” Crowe, 90 N.J. at 133 (citing Citizens Coach Co., 29 N.J. Eq. at 304 –05). Here, t he legal right underlying L.A.’s claim is settled, such that the McKinney-Vento Act a nd the New Jersey regulat ions governing the ed ucation of homeless children, provide that a local educational agen cy shall determine a homeless child’s district of enrollme nt in light of the child’s best interests and give a par ent with notice of his right to appeal the agency’s en rollment decision, and also provide that, if a parent disp utes the enrollment decision, the child ren shall be immediately enrolled in the District of the parent’s choice pending final resolution of the dispute. 42 U.S.C. § 11432(g)(3)(E); N.J.A.C. 6A:17-2.5. The petitioner has demonst rated to the under signed that she is homeless, and that Salem was the last district of residence. Accordingly, Salem has an o bligation to provide a free and appropriate education to L.A. The last agreed upon IEP provides for the out-of-district placement at Creative, and thus, I CONCLUDE, that the legal right of

OAL DKT. NO. EDS 16571-19 6 L.A. to be provided FAPE by Salem while he is homeless is a settled legal right. I therefore, that Salem is obligated to transport, or contract for L.A.’s transportation to Creative, and to re-enroll L.A. at Creative. III. Likelihood of Success on the Merits T.R. on behalf of L.A. has demonstrated that she is likely to succeed on the merits of h is underlying claim. Und er this emergent relief prong, “a pla intiff must make a prelimi nary showin g of a reasonable proba bility of ultimate success on the merits.” Crowe, 90 N.J. at 133 [citing Ideal Laundry Co. v. Gugliemone, 107 N.J. Eq. 108, 115– 16 (E. & A. 1930)]. This typically “‘involves a prediction of the probable outcome of the case’ based on each party’s initia l proofs, usually limited to docume nts.” Brown v. City of Paterson, 424 N.J. Super. 176, 182–83 (App. Div. 2012) [quoting Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 397 (App. Div. 2006)]. New Jersey regulations provide that children are homeless when they stay in the home of relatives or friends, with whom they are temporarily residing because the family lacks a regular or permanent r esidence of its own. N.J.A.C. 6A:17-2.3(a)(3). Similarly, the Mc Kinney-Vento Act describes homeless children as those “who lack a fixed, regular, and adequate nighttime residence . . .” including, “children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason [.]” 42 U.S.C. 11434a(2)(A), (B)(i). “Thus, an evaluation of ‘homelessness’ cannot rest upon a simple calculation o f the a mount of time that children have spent in a part icular location or municipality. The reasons for the children's homelessness, their living conditions, and the resources and intentions of the parents or custodians are relevant. ” M. O ’K. and S.O ’K. o /b/o K. O’K., A.O’K., and C.O’K. v. BOE of Borough of Cresskill, Bergen Cty. and BOE of Little Ferry, Bergen Cty., OAL Docket No. EDU 14830-13, Final Decision (Aug 12, 2014). It is clear , and I have FOUND that L.A. and his mother were evicted from their Salem C ity home and moved to the Camden City out of necessity . They were homeless as defin ed by the r egulations. See, N.J.A.C. 6A:17 -2.2(a)(3). The Dis trict

OAL DKT. NO. EDS 16571-19 7 has conceded that their truancy officer saw mail piled up and n o one residing at the home. It is not necessary to resolve the issue of who contact who and when. The relevant fact is that L.A. is homeless and r esiding with relatives in Camden tempor arily. Accordingly, the District of residence of L.A. is Salem, the District in which he resided prior to becoming homeless. N.J.S.A. 1 8A:7B-12(c). This designation did not change until L.A. and his family are “deemed domic iled in another jur isdiction, pursuant to N.J.S.A. 18A:38-1.d.” N.J.A.C. 6A:17-2.3(c). The date of homel essness as stated on the record by T. R. was October 3, 2019. At that time the family moved in w ith L.A.’s aunt in Ca mden City. Salem wi ll remain the District of residence until they re locate, remain in Camden for one year or on October 3, 20 20, or choose to enroll in Camden City School District. N.J.S.A. 18A:38-1(d). IV. Balancing the Equities The fourth and final emergent relief standard involves “the relative hardship to the parties in granting or denying relief.” Crowe, 90 N.J. at 134 [citing Isolantite Inc. v. United Elect. Radio & Mach. Workers, 130 N.J. Eq. 506, 515 (Ch. 1941), mod. on other grounds, 132 N.J. Eq. 613 (E. & A. 1942)]. There is no doubt that L.A. will suffer greater harm than the District, if the requested relief is not granted. L.A. has been out of school for two months, and the balancing of the equities requires that L.A. be re- enrolled and transported to school immediately. ORDER For the reasons set f orth above, it is hereby ORDERED that T.R.’s request for emergent relief directing Salem to provi de L.A. with transportation or contract with another District for such transportation to the last agreed upon placement at Creative Academy in Vineland is hereby GRANTED. It is also ORDERED that should L.A. miss five consecutive days without a doctor ’s note, the out -of-district placement will cease, and petitioner will be required to register L .A. with the City of Camd en if still residing there, or return to an in-district placement in Salem City. This final provision is based on

OAL DKT. NO. EDS 16571-19 8 a showing by the District due to the high volume of unexcused absen ces by L.A.and the need to have T.R. make school attendance a priority for L.A. This decision on application f or emergency relief resolves all of the issues raised in the due process complaint; therefore, no further proceeding s in this matter are necessary. This decision on application for emergency re lief is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and is app ealable by filing a complaint and bringing a civil action either in the Law Division of the Superior Court of New Jer sey or in a district court of the United States. 20 U.S.C. § 1415(i)(2) . If the parent or adult student feels that this decision is not b eing fully implemented with respect to program or services, this concern should be communicated in writing to the Dir ector, Office of Special Education Programs. December 3, 2019 DATE SARAH G. CROWLEY, ALJ Date Received at Agency: Date Mailed to Parties: SGC/cb

OAL DKT. NO. EDS 16571-19 9 APPENDIX EXHIBITS For petitioner: None For respondent Salem City Board of Education: RS-1 Letter brief supporting Salem’s position and opposing the application For respondent Camden City Board of Education: RC-1 Letter brief supporting Camden’s position and opposing the application