FOGARTY & HARA COUNSELLORS AT LAW
RODNEY T. HARA 21-00 ROUTE 208 SOOTH STEPHEN R. FOGARTY FAIR LAWN, NEW JERSEY 07410 VOTORIO s. LAPJRA (201) 791-3340 JANET L. F1KE TELECOPIER (201) 791-3432 STAGEY THERESE CHERRY AMY E CANNING RECEIVED NICHOLAS A. SOTO DAVID L D1SLER SEP I 6 20)6 AFSHAN T. AJMIR1 OLGA OGOLEV •^>0, BR0MBERG ROBERT D LORFINK September 15, 2016 & NEWMAN
VIA E-MAIL & FEDEX DELIVERY
Hon. Sarah G. Crowley, A.L.J. Office of Administrative Law 9 Quakerbridge Plaza Trenton, New Jersey 08619
Re: Upper Freehold Regional Board of Education v. Mills-bone Township Board of Education and Red Bank Regional High School District Board of Education Agency Ref. No.: 108/4-16 OAL Dkt. No.: EDU 6068-2016 Our File No.: 101
Dear Judge Crowley:
As Your Honor is aware, this office represents the Upper Freehold Regional Board of Education in the above captioned matter. Enclosed please find an original and two (2) copies of the Board's Reply Brief in support of its Motion for Summary Decision and in opposition to Millstone Township's Motion for Summary Decision, Reply Certification of Richard Fitzpatrick, Ed.D., and Proof of Service.
Kindly stamp a copy of the documents "filed" and return same to this office in the enclosed self-addressed stamped envelope.
{F&H00114509.DOCX/2} Hon. Sarah G. Crowley, A.L.J. September 15, 2016 Page 2
If you have any questions, of course, do not hesitate to contact me.
Respectfully submitted.
FOGARTY & HARA, ESfifS.
BY: £ST^PHBN /R. FOGARTY SRF:kd Enc. cc: Kerri A. Wright, Esq. w/encl. via e-: & FedEx delivery Bruce Helies, Esq. w/encl. - via e-mail & FedEx delivery Dr. Richard Fitzpatrick w/encl. - via e-mail only Superintendent of Schools Ms. Margaret Horn w/encl. - via e-mail only ' Business Administrator/Board Secretary
{F&H00114509.DOCX/2} UPPER FREEHOLD REGIONAL STATE OF NEW JERSEY BOARD OF EDUCATION, OFFICE OF ADMINISTRATIVE LAW
Petitioner, AGENCY REF. NO.: 108-4/16
v. OAL DOCKET NO.: EDU 06068-16
MILLSTONE TOWNSHIP BOARD OF EDUCATION AND RED BANK REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION,
Respondents.
BRIEF IN REPLY TO RESPONDENT'S CROSS-MOTION FOR SUMMARY DECISION
FOGARTY & HARA, ESQS. 21-00 Route 208 South Fair Lawn, New Jersey 07410 Telephone (201) 791-3340 Facsimile (201) 791-3432
Attorneys for Petitioner, Upper Freehold Regional Board of Education
Stephen R. Fogarty Of Counsel and On the Brief
Robert D. Lorfink On the Brief
{F&H00113816.DOCX/6} TABLE OF CONTENTS
PRELIMINARY STATEMENT 1
LEGAL ARGUMENT 2
THE BOARD'S PETITION IS TIMELY 2
A. THERE IS NO TIME LIMIT ON THE BOARD'S CLAIMS .... 2
B • LACHES DOES NOT APPLY 6
II. SUMMARY DECISION MUST BE ENTERED FOR THE BOARD BECAUSE MILLSTONE TOWNSHIP CONTINUES TO VIOLATE ITS SENDING/RECEIVING AGREEMENT BY SENDING STUDENTS TO RED BANK REGIONAL 8
A. THERE IS NO AUTHORITY FOR MILLSTONE TOWNSHIP, A BOARD OF EDUCATION WHO DOES NOT OPERATE A HIGH SCHOOL, TO SEND HIGH SCHOOL STUDENTS TO RED BANK REGIONAL 8
B. EVEN ASSUMING MILLSTONE TOWNSHIP IS PERMITTED TO USE N.J.S.A. 18A:38-15 IT CANNOT USE IT TO SEND THE SIXTEEN STUDENTS TO RED BANK REGIONAL 17
Millstone Township does not have the "absolute discretion" to permit its students to enroll at Red Bank Regional ... 17 There is no need for the Board's course of study to be comparable to Red Bank Regional's course of study 21 3. The Board offers a course of study in each area Millstone Township's students pursue at Red Bank Regional 23
4 Even if Millstone Township's definition of "course of study" is used, there is no basis to send them to Red Bank Regional ... 29 CONCLUSION 33
{F&HO0113816.DOCK/6} TABLE OF AUTHORITIES
CASES
Ass'n of Mun. Assessors of N.J, v. Twp. of Mullica, 225 N.J. Super. 475 (Law Div. 1988) 22
Bd. of Educ. of Asbury Park v. Bd. of Educ. of Belmar, 1967 S.L.D. 275 (Comm'r Sept. 22, 1967) 3, 6
Bd. of Educ. of Asbury Park v. Bd. of Educ. of Red Bank Req'l High Sch. Dist., 97 N.J.A.R.2d (EDU) 464 (1997) passim
Bd. of Educ. of Haworth v. Bd. of Educ. of Dumont, 1950 S.L.D. 42 (Comm'r Aug. 24, 1950) 13, 14
Bd. of Educ. of Interlaken v. Bd. of Educ. of Asbury Park, No. 298-14 (Comm'r July 17, 2014) 10
Bd. of Educ. of Interlaken v. Bd. of Educ. of Asbury Park, OAL Dkt. No. 5340-12 (May 11, 2012) (order on emergent relief) 5
P.M. ex rel. A.M. v. Bd. of Educ. of Long Branch, No 391-00 at 35 (Comm'r Nov. 28, 2000) 8, 17, 19, 21
P.M. ex rel. A.M. v. Bd. of Educ. of Long Branch, OAL Pkt. No. 4737-99 (Oct. 16, 2000) 24
Enfield v. FWL, Inc., 256 N.J. Super. 502, 520 (Ch. Piv. 1991). 7
Harsen v. Bd. of Educ. of W. Milford, 132 N.J. Super. 365 (Law Div. 1975) 8, 22
In re Petition of the Bd. of Educ. of Deal for Severance of its Sending-Receiving Relationship with the Bd. of Educ. of Asbury Park, No. 105-16 (Comm'r Mar. 11, 2016) 10
Lavin v. Bd. of Educ. of Hackensack, 90 N.J. 145 (1982) 6, 7
STATUTES
N.J.S.A. 18A:35-1 26
{FSH00113816.DOCX/6} ii N. J.S.A. 18A:35-3 26
N.J.S.A. 18A:38-11 1, 14, 16, 29
N.J.S.A. 18A:38-12 1, 3
N.J.S.A. 18A:38-13 passim
N.J.S.A. 18A:38-15 passim
N.J.S.A. 18A:40A-2 26
N.J.S.A. 18A:71B-89 27
N.J.S.A. 18A:71B-90 27
R.S. 18:14-7 3
REGULATIONS
N.J.A.C. 6:43-3.11(a) 21, 22
N.J.A.C. 6A:3-1.3(i) 4
OTHER AUTHORITIES
13 Non-Operating School Districts Eliminated, N.J. Dep't of Educ., http://www.state.nj.us/education/ news/2009/0701nonops.htm (last visited Sept. 13, 2016) 10, 11
2 Equity Jurisprudence § 419 at 171-72 (5th ed. 1941) 7
38 N.J.R. 3205 (Aug. 21, 2006) 22
About our School, Belmar Elementary Sch., http://www.belmar.kl2.nj.us/domain/102 (last visited Sept. 13, 2016) 10
Americans Top High Schools 2016, Newsweek, http://www.newsweek.com/high-schools/americas-top- high-schools-2016 (last visited Sept. 13, 2016) ... 1
Board of Education, Borough of Allentown, http://www.allenhurstnj.org/content/229/default.aspx (last visited Sept. 13, 2016) 10
High School Information, Avon Sch. Dist., http://www.avonschool.com/Page/300 (last visited Sept. 13, 2016) 10 {F&H00113816.DOCK/6} iii International Baccalaureate Diploma Programine, Red Bank Reg'l High Sch. Dist., http://www.rbrhs.org/Domain/72 (last visited Sept. 13, 2016) 28
Lake Como, N.J., Wikipedia, https://en.wikipedia.org/wiki/Lake_Como,_New_Jersey# Education (last visited Sept. 13, 2016) 11
N.J. Sch. Directory, N.J. Dep't of Educ., https://education.state.nj.us/directory/school.php?dis trict=0100&source=01 (last visited Sept. 15, 2016) 20
Policy 5120.1 - High School Assignments, Bradley Beach Bd. of Educ., http://www.bbesnj.org/bbes/Board%20of%20Education/ District%20Policies/5000%20- %20STUDENTS/5120.1%20%20HIGH%20SCHOOL%20ASSIGNMENTS (last visited Sept. 13, 2016) 10
R&R Educ. Consulting, LLC, Neptune City Feasibility Study, available at http://neptunecityschool.org/ cms/lib03/NJO1000385/Centricity/Domain/109/NEPTUNE%20C ITY%20FEASIBILITY%20STUDY%20FINAL%205%2011%2015.pdf .. , 11
Report Card Narratives - Brielle Elementary, N.J. Dep't of Educ., https://education.state.nj.us/pr/1314/narrative/25/056 0/25-0560-000.html (last visited Sept. 13, 2016) 10
Report Card Narratives - Keyport High Sch., N.J. Dep't of Educ., http://www.nj.gov/education/pr/1415/narrative/ 25/2430/050.html (last visited Sept. 13, 2016) 11
Spring Lake Sch. Dist., 2016-2017 Final Budget Presentation, - available at http://www.hwmountz.kl2.nj.us/cms/lib6/NJ01000652/Cent ricity/ Domain/4/Presentation%20Final%20Budget%202016- 2017.pdf 11
{F&H00113816.DOCX/6} iv INTRODUCTION
The time has come for the Millstone Township Board of
Education (hereinafter referred to as "Millstone Township") to
honor its obligations under the sending/receiving relationship it
has with the Upper Freehold Regional Board of Education
(hereinafter referred to as the "Board"). Instead of honoring its
agreement and sending all of its high school students to Allentown
High School, a school ranked by Newsweek as one of the top public
high schools in the nation, see Americans Top High Schools 2016,
Newsweek, http://www.newsweek.com/high-schools/americas-top-high- schools-2016 (last visited Sept. 13, 2016) (ranking Allentown High
School as the 226th best public high school in the country),
Millstone Township proposes an interpretation of the law in its
Motion for Summary Decision that would allow it, and every other
K-8 sending school district in a sending/receiving relationship, carte blanche to send its high school students to any school district it wished, notwithstanding its obligations under its sending/receiving agreement. This attempt to eviscerate the protections afforded to a receiving school district in N.J.S.A.
18A:38-11, -12, and -13 must be rejected.
Furthermore, even assuming that Millstone Township has the ability to send students to other high schools when Allentown High
School lacks a course of study in an subject the students wish to study, under the test Millstone Township proposes in its motion it
{F&H00113816.DOCK/6} 1 would still be unable to send its students to Red Bank Regional
High School (hereinafter referred to as "Red Bank Regional")
because Allentown High School can easily meet its test.
Finally, Millstone Township's argument that it is "unfair"
for the Board to raise these arguments now. more than a decade
after Millstone Township began sending students to Red Bank
Regional, must also be rejected. The Commissioner of Education
(hereinafter referred to as the "Commissioner") has clearly held that mere passage of time does not eliminate the requirement to follow the statutory procedures to modify a sending-receiving arrangement; therefore a violation of a sending-receiving agreement may be redressed at any time. Millstone Township's arguments regarding timeliness are nothing more than a distraction from the real issue in this case—Millstone Township's continued flagrant violation of the sending/receiving agreement. For the reasons set forth in the Board's Brief in support of its Motion for Summary Decision and below, the Board's motion must be granted and Millstone Township's denied.
LEGAL ARGUMENT
THE BOARD'S PETITION IS TIMELY.
A. THERE IS NO TIME LIMIT ON THE BOARD'S CLAIMS.
There is no doubt that the Board's Petition in this matter is timely. The Commissioner long ago held that there is no time limit to challenge a violation of a sending/receiving agreement. In Board
{F&H00113816.DOCX/6} 2 of Education of Asbury Park v. Board of Education of Belmar, 1967
S.L.D. 275 (Comm'r Sept. 22, 1967), Asbury Park was one of three
receiving schools for Belmar high school students. Pursuant to
R.S . 18:14-7 (now codified at N.J.S.A. 18A:38-12), Asbury Park was
entitled to receive 4 4.3% of Belmar's high school students. Id. at
279. Belmar sent fewer than the required percentage to Asbury Park
in every school year between 1953-1954 and 1965-1966. Id. at 276.
The Commissioner held that there was no issue with Asbury Park not
challenging the violation for over ten years: "Asbury Park's
failure to press its claim for the full allocation of Belmar's
pupils . . . cannot have the effect of changing the nature of the
existing sending-receiving relationship without the express
approval and consent of the Commissioner . . ." Id. at 279.
Like Asbury Park, here the Board filed a Petition to enforce
its rights under a sending/receiving relationship. It alleges that
Millstone Township has been violating the relationship by sending students to Red Bank Regional. The fact that Millstone Township has been sending students to Red Bank Regional for years cannot have the effect of changing the nature of the relationship between the Board and Millstone Township because that relationship can only be changed with the approval of the Commissioner. See N.J. S. A.
18A:38-13. The law is clear that a board of education cannot create a dual sending/receiving relationship by ignoring the requirement to seek the Commissioner's approval and then claim years later
{F&H00113816.DOCK/6} 3 that the violation must be maintained because it has become
longstanding. The nature of the statutory framework here allows
the Board to bring its claims at any time, and therefore the
Petition is timely.
In light of this case law, Millstone Township's argument that
the Board's Petition is time-barred is more accurately described
as a claim the Board's Petition fails as a matter of law. not that
it is time-barred. It claims that the ninety-day rule of N.J.A.C.
6A:3-1.3(i) applies and that any exception to this rule "based on a sending-receiving relationship is irrelevant . . . ." (Millstone
Twp. Br. at 23). In this case, either N.J.S.A. 18A:38-15 provides
Millstone Township no authority to send students to Red Bank
Regional, in which case Millstone Township has and continues to
breach the sending/receiving agreement and there is no time limit for the Board to raise its claims, or N.J.S.A. 18A:38-15 allows
Millstone Township to send high school students to Red Bank
Regional, in which case the Board's Petition fails as a matter of law making its timeliness irrelevant. Either way, the substantive issues of the Petition must be considered first, and only after there is a decision on the substance of the Board's claims can the procedural matter of statute of limitations be considered.
Therefore, Millstone Township's statute of limitations argument is nothing more than a distraction from the true issue in the case—
{F&H00113816.DOCK/6} 4 whether N.J.S.A. 18A:38-15 allows Millstone Township to send the
sixteen students to Red Bank Regional.
Moreover, the fact that the Executive County Superintendent
reviewed Millstone Township's budget each year and the budget
included tuition for high school students is irrelevant. (See
Millstone Twp. Br. at 21). In Board of Education of Interlaken v.
Board of Education of Asbury Park, OAL Dkt. No. 5340-12, 2012 WL
1680805 (May 11, 2012) (order on emergent relief), Interlaken began
to send its elementary school students to West Long Branch and its
high school students to Shore Regional in violation of its
sending/receiving agreement which required all of its students to
go to Asbury Park. The Executive County Superintendent reviewed
the tuition contracts and informed Interlaken that the contracts
implicated multiple statutes and any change in its
sending/receiving relationship must be approved by the
Commissioner. Ibid. He advised Interlaken not to proceed, but the
students began attending West Long Branch and Shore Regional. Ibid.
Later that school year, the Executive County Superintendent again advised Interlaken of the necessity of obtaining Commissioner approval and that any action to continue the arrangement for the following school year would be at its own peril. Ibid. Interlaken makes clear that mere knowledge by the Executive County
Superintendent of a sending/receiving violation will not
{F&H00113816.DOCK/6} 5 necessarily stop it from occurring.1 For these reasons. there is
no doubt the Board's Petition is timely.
B. LACHES DOES NOT APPLY.
In addition to its statute of limitations argument, Millstone
Township also raises the equitable defense of laches. (Millstone
Twp. Br. at 20-22). This defense has no merit. First, as discussed
above, the case law is clear the Board is permitted to raise its
claims at any time. and there is no requirement that it explain
the reasons for a delay in raising the claims. See Asbury Park,
supra, 1967 S.L.D. at 279.
Even assuming laches did apply to this matter. Millstone
Township cannot meet the requirements to invoke the defense. Our
Supreme Court has defined laches as "such neglect or omission to
assert a right as, taken in conjunction with the lapse of time.
more or less great, and other circumstances causing prejudice to
an adverse party, [that] operates as a bar in a court of equity."
Lavin v. Bd. of Educ. of Hackensack, 90 N.J. 145, 151 (1982)
1 Additionally, the mere fact that Millstone Township submitted a budget listing tuition for Red Bank Regional does not mean the Executive County Superintendent was able to determine whether or not it was violating the sending/receiving arrangement. Millstone Township listed Red Bank Regional in its budget as "Regular Voc.," the same designation it gave county vocational schools. (Feder Cert. Ex. A (the certification of Scott Feder was submitted by Millstone Township in support of its Motion for Summary Decision)). As discussed in the Board's original brief, Red Bank Regional is not a vocational school, so this misrepresentation could have led the Executive County Superintendent to believe Millstone Township was not violating the sending/receiving relationship. Moreover, Millstone Township has never claimed that it provided any information to the Executive County Superintendent regarding the respective courses of study offered at both schools, an obvious prerequisite for the Executive County Superintendent to determine whether Millstone Township is permitted to send students to Red Bank Regional. {FSHO0113816.DOCX/6} 6 (quoting 2 Equity Jurisprudence § 419 at 171-72 (5th ed. 1941)).
The Court has been clear that "mere lapse of time is insufficient."
Id. at 153. Instead, "Inequity, more often than not, will turn on
whether a party has been misled to his harm by the delay." Ibid.
(citations omitted). "The burden of proof is upon the defendant to show that his adversary prejudiced him by delaying the assertion of his claim without excuse or explanation." Enfield v. FWL, Inc.,
256 N.J. Super. 502, 520 (Ch. Div. 1991).
Here, Millstone Township seeks to invoke the doctrine of laches based merely upon the passage of time. The Supreme Court has been clear this is inappropriate. Instead, as set forth above, the doctrine focuses on whether Millstone Township has been misled to its harm by any delay and therefore suffered prejudice. Nowhere in its brief does Millstone Township claim to have been misled to its harm, and the burden is on it to establish the delay has caused prejudice to it. In addition to only focusing on the alleged delay. which the Supreme Court has been clear is insufficient to invoke laches without more, Millstone Township nowhere alleges to have suffered any prejudice as a result of the Board's actions. Because mere passage of time alone is not enough to claim the defense of laches, there is no basis for the Court to find laches as a bar to the Board's Petition.
{F&H00113816.DOCK/6} 7 II. SUMMARY DECISION MUST BE ENTERED FOR THE BOARD BECAUSE MILLSTONE TOWNSHIP CONTINUES TO VIOLATE ITS SENDING/RECEIVING AGREEMENT BY SENDING STUDENTS TO RED BANK REGIONAL. A. THERE IS NO AUTHORITY FOR MILLSTONE TOWNSHIP, A BOARD OF EDUCATION WHO DOES NOT OPERATE A HIGH SCHOOL, TO SEND HIGH SCHOOL STUDENTS TO RED BANK REGIONAL. As discussed at length in the Board's original brief in
support of its Motion for Summary Decision, there is no authority
for a school district lacking a high school to send high school
students to another school district's high school instead of the
designated high school under the sending/receiving relationship.
(Upper Freehold Reg'1 Br. at 9-18). This is because the plain
language of N.J.S.A. 18A:38-15, the only possible authority for
Millstone Township to send students to Red Bank Regional, see D.M.
ex rel. A.M. v. Bd. of Educ. of Long Branch, No 391-00 at 35
(Comm'r Nov. 28, 2000), plainly states that the provision may be invoked only by a board of education "not furnishing instruction in a particular high school course of study." N.J.S.A. 18A:38-15.
The Legislature's use of the word "particular" in the provision clearly contemplates that the board of education invoking it furnishes instruction in other high school courses of study.
Allowing Millstone Township to avail itself of this provision would require this Court and the Commissioner to ignore the Legislature's use of the word "particular" in the provision and instead insert the word "any." This would clearly be improper. Harsen v. Bd. of
Educ. of W. Milford, 132 N.J. Super. 365, 382 (Law Div. 1975).
{F&H00113816.DOCX/6} 8 The danger of allowing Millstone Township, or any other K-8
district that is the sending district in a sending/receiving
relationship, is plainly evident from an exhibit attached to
Millstone Township's certification of counsel. Exhibit G to the
Certification of Kerri A. Wright, Esq., submitted in support of
Millstone Township's Motion for Summary Decision, includes the
following table illustrating the number of out-of-district
students at Red Bank Regional for the 2015-2016 school year:
Sending School District Number of Students
Allenhurst 5
Asbury Park 1
Avon 13
Belmar 27
Bradley Beach 29
Brielle 7
Brick 1
Deal 3
Interlaken 1
Keansburg 3
Lake Como 5
Millstone 16
Neptune City 27
Spring Lake Borough 2
{F&H00113816.DOCX/6} 9 Union Beach 98
Parent Pay 30
Children of Employees (Non- 7
Tuition)
Total Out of District Student 275
Projection
Interestingly enough, of the 238 out-of-district students who had their tuition for Red Bank Regional paid by their school district of residence (i.e., the total after the children of employees and parent pay students are removed), 233 of them were sent by a school district who is the sending district in a sending/receiving agreement.2 Thus, instead of sending these 233 students to the
2 Allenhurst is a non-operating school district, see 13 Non-Operating School Districts Eliminated, N.J. Dep't of Educ., http://www.state.nj.us/education/ news/2009/0701nonops.htm (last visited Sept. 13, 2016), which sends its students to Asbury Park High School. See Board of Education, Borough of Allentown, http://www.allenhurstnj.org/content/229/default.aspx (last visited Sept. 13, 2016). Avon sends 37.5% of its high school students to Asbury Park High School and the remaining 62.5% to Manasquan High School. High School Information, Avon Sch. Dist., http://www.avonschool.com/Page/300 (last visited Sept. 13, 2016). Belmar sends its high school students to Asbury Park High School or Manasquan High School. About our School, Belmar Elementary Sch., http://www.belmar.kl2.nj.us/ domain/102 (last visited Sept. 13, 2016). Bradley Beach sends 93% of its high school students to Asbury Park High School with the remaining 7% attending Neptune High School. Policy 5120.1 - High School Assignments, Bradley Beach Bd. of Educ., http://www.bbesnj.org/bbes/Board%20of%20Education/ District%20Policies/5000%20-%20STUDENTS/5120.1%20%20HIGH%20SCHOOL%20ASSIGNMENTS (last visited Sept. 13, 2016). Brielle sends its high school students to Manasquan High School. Report Card Narratives - Brielle Elementary, N.J. Dep't of Educ., https://education.state.nj.us/pr/1314/narrative/25/0560/25-0560-000.html (last visited Sept. 13, 2016). Deal sends its high school students to Shore Regional High School. In re Petition of the Bd. of Educ. of Deal for Severance of its Sending-Receivinq Relationship with the Bd. of Educ. of Asbury Park, No. 105 16 (Comm'r Mar. 11, 2016). Interlaken sends to West Long Branch High School and Shore Regional High School. Bd. of Educ. of Interlaken v. Bd. of Educ. of Asbury Park, No. 298-14 (Comm'r July 17, 2014). Lake Como, another non-operating district, see 13 Non-Operating School Districts Eliminated, N.J. Dep't of Educ., {F&H00113816.DOCK/6} 10 designated receiving high school, each board of education chose to
send them to Red Bank Regional. This enormously high percentage of
students coming from sending districts, 97.9% of the total, cannot
be a coincidence.
This tremendous number of out-of-district students attending
Red Bank Regional shows why the decision to send students there
needs to be made by the receiving district in a sending/receiving
arrangement, not by the sending district. A sending district, if
it gives any consideration to the matter, will focus its decision
on the student's needs and whether the proposed high school offers
a course of study not offered at the designated high school.
However, the receiving district will evaluate these factors as well as the impact sending the student elsewhere will have on the high school as a whole. While consideration of the larger high school community is largely unnecessary when only one or two students are involved, when a district begins to send fifteen or twenty students. or in- the extreme case of Union Beach, ninety-
http://www.state.nj.us/education/news/2009/0701nonops.htm (last visited Sept. 13, 2016), sends its high school students to Manasquan High School or Asbury Park High School. Lake Como, N.J., Wikipedia, https://en.wikipedia.org/wiki/ Lake_Como,_New_Jersey#Education (last visited Sept. 13, 2016). Millstone Township sends to Red Bank Regional. (Feder Cert. S 2). Neptune City sends to Neptune Township High School. R&R Educ. Consulting, LLC, Neptune City Feasibility Study 3, available at http://neptunecityschool.org/ cms/lib03/NJ01000385/Centricity/Domain/109/NEPTUNE%20CITY%20FEASIBILITY%20STU DY%20FINAL%205%2011%2015.pdf. Spring Lake Borough sends to Manasquan High School. Spring Lake Sch. Dist., 2016-2017 Final Budget Presentation 8, available at http://www.hwmountz.kl2.nj.us/cms/lib6/NJO1000652/Centricity/ Domain/4/Presentation%20Final%20Budget%202016-2017.pdf. Finally, Union Beach sends to Keyport High School. Report Card Narratives - Keyport High Sch., N.J. Dep't of Educ., http://www.nj.gov/education/pr/1415/narrative/ 25/2430/050.html (last visited Sept. 13, 2016).
{F&H00113816.DOCX/6} 11 eight students, there will unquestionably be an impact on the high
school from the missing students.
The practice of a sending district in a sending/receiving
agreement sending students to Red Bank Regional as well as their
designated high schools provides a large sending district like
Millstone Township with the ability to cripple the designated
receiving high school.3 While not currently the case, Millstone
Township could begin to send a significantly larger number of
students to Red Bank Regional, say ninety-eight like Union Beach
sends, instead of Allentown High School. This clearly would have
a detrimental. if not catastrophic, effect on the operations of
Allentown High School, certainly leading to the elimination of
programs, courses, and activities it currently offers. Were it to choose not to send the 600 students it intends to send to Allentown
High School for the 2016-2017 school year. (see Feder Cert. SI 3), and instead sent 518 (removing the eighty-two student differential between what Millstone Township and Union Beach sent to Red Bank
Regional in 2015-2016) the Board would face a drop in tuition revenue of more than $1,000,000 (eighty-two students multiplied by the tuition rate of $12,682) with little, if any, advance notice.
Such a decrease would have a catastrophic impact on the Board's ability to provide a diverse array of courses and activities for
3 Millstone Township sends approximately 600 students to Allentown High School. (Feder Cert. 33). {FSH00113816.DOCK/6} 12 its students, and almost certainly would force the Board to drastically reduce its staff.
Such a practice of allowing sending districts to choose between sending their high school students to Red Bank Regional or their designated high schools is a clear violation of the security the sending/receiving arrangement was designed to offer to the participating school districts. As the Commissioner long ago noted,
In this State there are 165 school districts which maintain high schools for pupils of all high school grades. This means that 387 school districts must depend upon the 165 for the education of their high school pupils. This arrangement is mutually advantageous. The sending districts obtain high school facilities cheaper than such facilities can be provided by themselves and the additional pupils enable the receiving districts to expand their educational offerings and reduce their overhead.
[Bd. of Educ. of Haworth v. Bd. of Educ. of Dumont, 1950 S.L.D. 42, 43 (Comm' r Aug. 24, 1950).]
The Commissioner noted that this was not always the case:
It was to give stability to the receiving- sending set-up that the first high school designation law was enacted. Before the enactment of this law, receiving districts hesitated to bond themselves to erect buildings and to expand their facilities to provide for tuition pupils for the fear that the tuition pupils might be withdrawn after the facilities have been provided. The high school designation law protects such districts from the withdrawal of tuition pupils without good cause. This statute benefits both the
{F&H00113816.DOCX/6} 13 sending district as well as the receiving district.
[Ibid.]
Millstone Township's reading of N.J.S.A. 18A:38-15 eliminates any security the Board received from N.J.S.A. 18A:38-11 and -13 if
Millstone Township truly is permitted to send its high school students anywhere it desires if it can identify a course of study that is different from those offered at Allentown High School. If it did so, it could theoretically stop sending all of its students to Allentown High School and divide them up among other schools without being required to produce a feasibility study and obtain the Commissioner's approval pursuant to N.J.S.A. 18A:38-13. While it is unlikely Millstone Township would ever remove all of its students from Allentown High School, Union Beach's decision to send nearly 100 students to Red Bank Regional shows it is possible to send a much greater number of students there than Millstone
Township is currently sending. There simply would be no incentive for any school district to expand its facilities to take in a large number of students from a school district which lacks a high school if Millstone Township is correct that it is not obligated to send students if it can point to a different course of study in another school district's high school. Millstone Township cannot be permitted to retain the benefit it receives from the sending/receiving arrangement, the requirement that the Board remain ready, willing, and able to educate all of its high school
{F&H00113816.DOCX/6} 14 students. while also claiming it is not required to confer a
similar benefit on the Board, a guarantee that it will consistently
send all of its high school students to Allentown High School.
The risk at stake here is particularly high when considering
Millstone Township's argument that it is permitted to send high school students elsewhere to attend the International
Baccalaureate program, since attending this program would not require going through the application process to enter one of Red
Bank Regional's Academy programs.4 Furthermore, the presence of other nearby high schools makes this an even more plausible occurrence. While it would seem unlikely Red Bank Regional could accommodate all of Millstone Township's students. as noted above. it already accepts 275 out-of-district students. Instead of spreading these seats around among many districts, it could devote all of them to Millstone Township's students who then would claim they are attending the school because of the possibility of participating in the International Baccalaureate program. The remaining students, or at least a portion thereof, could be split up between two other Monmouth County high schools offering the
International Baccalaureate program: Freehold Township High School and Shore Regional High School. (See Wright Cert. Ex. A (list of
International Baccalaureate programs in New Jersey)). If Millstone
4 As discussed infra, Point II.B.3, the Board disputes that the International Baccalaureate program is a separate and distinct course of study. {F&H00113816.DOCK/6} 15 Township is correct about the law, it is clear that it has the
ability to cease sending a significant portion of its high school
students, if not all of its high school students, to other nearby
high schools without having to receive approval of the Commissioner
to modify its sending/receiving agreement with the Board. This
cannot be the law.
In conclusion, if the sending/receiving protections set forth
in N.J.S.A. 18A:38-11 and -13 are to have any meaning, there is no
choice but to follow the plain language of N.J.S.A. 18A:38-15 and
hold that it may only be invoked by a board of education that
operates a high school. Providing discretion to a sending district to determine whether or not a high school it does not operate offers a course of study and allowing it to suspend its sending obligations unilaterally when it determines there is no course of study will set a dangerous precedent. It will incentivize any sending district who is unhappy with its current receiving high school to scrutinize its curriculum to determine courses of study offered by neighboring schools that its designated receiving school lacks or to just send its students to the nearest high school offering the International Baccalaureate program, assuming the designated receiving school does not offer it. Surely many sending districts will jump at this opportunity, especially those districts the Commissioner has already barred from severing or modifying their sending/receiving arrangements under N.J.S.A.
{F&H00113816.DOCK/6} 16 18A:38-13. This Court and the Commissioner cannot permit this to
occur.
EVEN ASSUMING MILLSTONE TOWNSHIP IS PERMITTED TO USE N.J.S.A. 18A:38-15 IT CANNOT USE IT TO SEND THE SIXTEEN STUDENTS TO RED BANK REGIONAL.
Even if Millstone Township, as a board of education who does
not operate a high school, is permitted to use N.J.S.A. 18A:38-15
to send its high school students to other high schools when its
designated high school does not furnish instruction in a course of
study furnished by another high school, Millstone Township still cannot use N.J.S.A. 18A:38-15 in this case because the Board furnishes instruction in each course of study Millstone Township's students pursue at Red Bank Regional. Since the Board furnishes instruction in each course of study. there is no authority for
Millstone Township to send students to Red Bank Regional, and it currently is doing so in violation of the sending/receiving agreement. Contrary to Millstone Township's argument, the Board has not "misconstrued the relationship between Millstone and Red
Bank Regional .... (Millstone Twp. Br. at 6).
Millstone Township does not have the "absolute discretion" to permit its students to enroll at Red Bank Regional.
In its brief. Millstone Township argues that two cases, P.M. ex rel. A.M. v. Board of Education of Long Branch and Board of
Education of Asbury Park v. Board of Education of Red Bank Regional
{F&H00113816.DOCX/6} 17 High School District, have already settled this issue and held
that "local boards of education have the absolute discretion to
permit their students to enroll at Red Bank Regional." (Millstone
Twp. Br. at 6). According to Millstone Township, when these two
cases are read together they "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 Education program
[(hereinafter referred to as a "CTE program")], as does Red Bank
Regional." Id. at 7. This is not the holding of either case.
Asbury Park presents a straightforward case. Asbury Park alleged that some of its sending school districts were violating their sending/receiving relationship by sending students to Red
Bank Regional to attend a performing arts program. Bd. of Educ. of
Asbury Park v. Bd. of Educ. of Red Bank Reg'1 High Sch. Dist., 97
N.J.A.R.2d (EDU) 464 (1997). It claimed that a performing arts program at Brookdale Community College offered to students attending Asbury Park High School was equivalent to Red Bank
Regional's performing arts course of study. Ibid. The ALJ rejected this argument concluding "[t]he alleged comparability of performing arts program at Red Bank Regional High School and the
Asbury Park-Brookdale Community College did not withstand the testimony, completely unrebutted." Id. at 467. It is not entirely
{F&H00113816.DOCX/6} 18 clear from the decision what the basis is for this conclusion, but
it likely is a recognition that allowing students to take classes
at a nearby community college is not the equivalent of furnishing
instruction in a course of study in your high school facility. At
most, Asbury Park stands for the unremarkable proposition that if a high school lacks a course of study in its school facility. allowing students to take it at a nearby community college cannot prevent the application of N.J.S.A. 18A:38-15.
Nor does D.M. compel the conclusion Millstone Township seeks.
In D.M. ex rel. A.M. v. Board of Education of Long Branch, No.
391-00 (Comm'r Nov. 28, 2000), aff' d o.b. , (State Bd. Jul. 10,
2001), the Commissioner considered a case in which a group of parents of Red Bank Regional students and Red Bank Regional sought to compel four different boards of education to pay tuition for their children to attend Red Bank Regional for its visual and performing arts program. In the case, Red Bank Regional asserted that N.J.S.A. 18A:54-7 applied and required the boards of education to pay tuition for students to attend its vocational programs. The
Commissioner rejected Red Bank Regional's arguments regarding
N.J.S.A. 18A:54-7 and held that "N.J.S.A. 18A:38-15 . . . controls the outcome in this matter." Id. at 35.
It is clear from reviewing both cases that neither held that local boards of education have absolute discretion to permit their students to enroll at Red Bank Regional. In fact, the local board
{F&H00113816.DOCX/6} 19 of education cannot prevent any student from enrolling there if
the student's parent is willing to pay tuition privately. The local
board of education only has discretion regarding whether it will
pay tuition, and this discretion is completely withdrawn if the designated high school furnishes instruction in the course of study pursued at Red Bank Regional. Millstone Township's discretion is not nearly as "absolute" as it claims to be. Moreover, it is equally clear that neither case holds a local board of education's decision cannot be challenged if the resident district does not offer a State-approved CTE program. This test does not appear in either case. nor is it mentioned in the plain language of N.J.S.A.
18A:38-15. Contrary to Millstone Township's best attempts at arguing otherwise, the test simply is whether the receiving high school furnishes instruction in a course of study the student desires to pursue at another high school.
Furthermore, neither case faced the issue of whether N.J.S.A.
18A:38-15 could be invoked by a board of education that does not operate a high school. In both cases, all of the five boards of education: Asbury Park, Long Branch, Middletown, Shore Regional, and Rumson-Fair Haven Regional, operated a high school. See N.J.
Sch. Directory, N.J. Dep' t of Educ., https://education.state.nj.us/directory/school.php?district=0100
&source=01 (last visited Sept. 15, 2016). Therefore, it was unnecessary to consider the threshold issue of this case, whether
{F&H00113816.DOCX/6} 20 N.J.S.A. 18A:38-15 applies at all. Since the Commissioner and State
Board of Education did not need to confront the threshold issue
presented in this case. Millstone Township is mistaken that the
cases provide it with "absolute discretion" to send students to
Red Bank Regional.
There is no need for the Board's course of study to be comparable to Red Bank Regional's course of study.
To the extent Millstone Township also argues P.M. and Asbury
Park hold that the test when evaluating two courses of study is one of comparability or equivalency, it is mistaken. Neither case holds that the Board must establish its course of study is comparable to Red Bank Regional's, and imposing such a requirement would violate the plain language of the statute.
Admittedly, there is some discussion in both Asbury Park and
D.M. regarding whether or not there was a comparable course of study at the designated receiving high school. This comparability test was not imposed by N.J.S.A. 18A:38-15, but instead was derived from a now-repealed regulation. At the time of both cases, N.J.A.C.
6:43-3.11(a) provided:
Pupils shall be permitted to enroll in programs of vocational instruction offered by district boards of education other than their resident district so long as the resident district board of education does not offer a comparable type of program and space is available for additional enrollees in the programs offered by the receiving district board of education.
{F&H00113816.DOCX/6} 21 It appears likely that Asbury Park's discussion of comparability.
assuming it was an intentional attempt to impose a test instead of
a remark made in passing, came from N.J.A.C. 6:43-3.11(a) which
actually used the word "comparable" instead of N.J.S.A. 18A:38-
15, which does not include the word. N.J.A.C. 6:43-3.11(a),
however, no longer exists because what remained of it was repealed
in 2006. See 38 N. J.R. 3205, 3210 (Aug. 21, 2006). Since the
provision has been repealed, there is no longer any basis to impose
a comparability test.
There is no requirement in N.J.S.A. 18A:38-15 that the course of study furnished by the Board be equivalent or comparable to that at Red Bank Regional for the Board to prevent students from attending Red Bank Regional at Millstone Township's expense. Any imposition of an equivalency or comparability test impermissibly adds language to the statute which the Legislature chose not to include; such a construction is not permitted. See Harsen, supra.
132 N.J. Super, at 382. Words may only be inserted into a statute to remedy an apparent omission, Ass'n of Mun. Assessors of N.J, v.
Twp. of Mullica, 225 N.J. Super. 475, 481 (Law Div. 1988), and here there is nothing to indicate the Legislature omitted anything from the statute. Therefore, the test only requires that the Board establish that it furnishes instruction in each course of study
Millstone Township's students pursue at Red Bank Regional. The
{F&H00113816.DOCK/6} 22 Board need not offer a comparable or identical course of study; it
must only offer a course of study.
3. The Board offers a course of study in each area Millstone Township' s students pursue at Red Bank Regional.
Millstone Township contends that instruction in a course of
study "is different from furnishing a course or even several courses." (Millstone Twp. Br. at 14). Unsurprisingly, Millstone
Township asks this Court to adopt a definition of "course of study" which is solely focused on CTE programs. It looks to the Carl D.
Perkins Career and Technical Education Act of 2006, a federal law enacted decades after N.J.S.A. 18A:38-15, which defines "program of study" as a "comprehensive, structured approach for delivering academic and career and technical education to prepare students for postsecondary education and career success." (Millstone Twp.
Br. at 15). This cannot be the definition of "course of study" the
Legislature intended for N.J.S.A. 18A:38-15.
The main problem with Millstone Township's proposed definition is that it focuses solely on CTE programs. N.J.S.A.
18A:38-15, however, makes no mention of CTE programs or even vocational programs. it merely speaks in terms of "course of study." Were this Court and the Commissioner to adopt Millstone
Township's definition, students would never be able to invoke the statute to attempt to attend a non-CTE program. Clearly the plain language of the statute allows it to be used to take a course of
{F&H00113816.DOCX/6} 23 study that is not a CTE program. Had the Legislature intended to
limit the statute like Millstone Township contends it would have
done so expressly instead of allowing it to be used for any course
of study.
Moreover, the Initial Decision in P.M. made clear that a course of study can be part of a sequence of courses and need not be part of an approved vocational or CTE program:
Since 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.
[P.M. ex rel. A.M. v. Bd. of Educ. of Long Branch, OAL Pkt. No. 4737-99 at 29 n.3 (Oct. 16, 2000) (emphasis added).]
The Initial Pecision makes clear that there were two possibilities of preventing the students from attending Red Bank Regional: 1) having an approved vocational program in the area the students were enrolled (visual or performing arts) or 2) have a sequence of courses in the subject area. See ibid. It simply is not necessary to have an approved CTE program to prevent a sending district from sending its students to a CTE program offered by another local board of education—the receiving district only needs to have a sequence of courses in the discipline.
{F&H00113816.DOCX/6} 24 The absurdity of using the CTE-focused definition proposed by-
Millstone Township is best demonstrated by comparing the two high
schools' culinary courses of study. At Red Bank Regional, the
culinary course of study is part of the Academy of Finance. (See
Lorfink Cert. Ex. A at 17).5 To complete this Academy, students
take Baking, Entrepreneurship, Introduction to Commercial Foods,
Marketing, Nutrition, and a General Elective. Ibid. At Allentown
High School, there is a course of study available which includes courses such as Foods and Nutrition, Advanced Foods, International
Cuisine, Advanced Baking, and Honors Food Chemistry. (Guterl Cert.
1116).6 It also offers similar business courses to the two taken in
Red Bank Regional's culinary course of study. (Guterl Cert. Sill).
Millstone Township cannot seriously argue that Red Bank Regional's culinary course of study is more comprehensive and structured than
Allentown High School's version. The two schools have practically identical course offerings in this area, and the only difference between the two is that Red Bank Regional's is offered in a course of study that has been approved by the State as a CTE program while the Board's has not been similarly approved. It is preposterous that a sending district could avoid its sending obligations simply because another school has a State-approved CTE program where the
5 The Certification of Robert Lorfink was submitted by the Board in support of its Motion for Summary Decision. 6 The Certification of Mark Guterl was submitted by the Board in support of its Motion for Summary Decision. {F&H00113816.DOCK/6} 25 students will take the exact same classes as those offered at the
designated receiving school. This cannot be the law.
Likely as a result of the myriad of problems its CTE-focused
definition presents. Millstone Township also proposes an
alternative definition for course of study: "a set of classes and other educational elements that are coherent or put together in a fully-intentioned manner." (Millstone Twp. Br. at 16). This definition is inconsistent with other uses of "course of study" in
Title 18A and should be rejected. Instead, a more appropriate definition, and one that is more consistent with the plain language of the statute is the one proposed by the Board in its original brief: instruction in a subject area. (Upper Freehold Reg'l Br. at
25). The Board's definition is consistent with a number of provisions in Title 18A which apply to local boards of education such as N.J.S.A. 18A:35-1 (requiring the adoption of a two-year course of study in U.S. History) and N.J.S.A. 18A:35-3 (requiring the adoption of a course of study in "community civics, the history and civics of New Jersey"). Clearly the Legislature intended here for boards of education to provide instruction in these areas via academic classes. be it stand alone courses or as a portion of a course. The same is true for the substance abuse example Millstone
Township invoked in its brief, N.J.S.A. 18A:40A-2. Clearly that provision requires boards of education to provide instruction in
{FSHO0113816.DOCX/6} 26 a subject area—substance abuse.7
Using the Board's proposed definition, it becomes clear that
it offers a course of study in each area Millstone Township
students pursue at Red Bank Regional. This is discussed at length
in the Board's original brief and need not be repeated. (See Upper
Freehold Reg'l Br. at 28-31).
Finally, Millstone Township's discussion of Red Bank
Regional's International Baccalaureate plan is nothing more than
a misleading attempt to distract from the real issue in this
matter. Millstone Township argues at length that the presence of
the International Baccalaureate program at Red Bank Regional, and
its corresponding absence at Allentown High School, provides an
independent basis for it to send students to Red Bank Regional.
The presence of the International Baccalaureate program at Red
Bank Regional provides no basis for it to send students there.
As an initial matter, the International Baccalaureate program
is not a course of study; it is an educational program in which
7 Millstone Township's citation to N.J.S.A. 18A:71B-89, a provision concerning higher education, provides no support for its proposed definition because of its unique nature. The provision, which sets forth definitions for the Social Services Student Loan Redemption Program, defines "approved course of study" as an undergraduate program leading to a bachelor's degree or a graduate program leading to a master's degree in social work, psychology or counseling, or occupational, physical or speech therapy. N.J.S.A. 18A:71B-89. Since this program deals with the repayment of student loans as an incentive to be a direct care professional at certain public facilities, see N.J.S.A. 18A:71B-90, this unique definition had to be phrased in terms of a degree program because the program is designed to pay an employee's loans for his or her degree, not a class or series of classes he or she took. This unique provision looks backward at a degree program the individual has completed, not forward at a course or series of courses an individual will take in the future like other uses of "course of study" in Title 18A. {F&H00113816.DOCK/6} 27 students take courses in English, World Language, Social Studies,
Science, Math, and the Arts. International Baccalaureate Diploma
Programme, Red Bank Reg'1 High Sch. Dist.,
http://www.rbrhs.org/Domain/72 (last visited Sept. 13, 2016).
Millstone Township has not alleged, nor could it, that the Board
does not furnish instruction in English, World Language, Social
Studies, Science, Math, and the Arts at Allentown High School. It strains the definition of "course of study" to claim that a different method of teaching courses given at every high school in this State can transform it into a different course of study.
Furthermore, even assuming the International Baccalaureate program is an independent course of study, nowhere in any of the voluminous filings in this case did Millstone Township or Red Bank Regional contend that any Millstone Township students are attending Red
Bank Regional to enroll in the International Baccalaureate program. More than mere speculation is required. Additionally, this opportunity is a two-year program only open to juniors and seniors. (Millstone Twp. Br. at 17). Since no freshmen or sophomores take a different course of study than those offered at
Allentown High School, there is no explanation regarding why these students should not be attending Allentown High School for their first two years of high school before transferring to Red Bank
Regional for their junior and senior years. The hypothetical possibility of taking the program in a student's junior and senior
{F&H00113816.DOCK/6} 28 years is an insufficient basis to avoid attending Allentown High
School for the two years the student is not in the program.8
There is no doubt that N.J.S.A. 18A:38-15 cannot support the
relationship between Red Bank Regional and Millstone Township in light of the fact the Board can provide a course of study in every subject area Millstone Township students pursue at Red Bank
Regional. Since there is no legal authority for Millstone Township to pay tuition to Red Bank Regional, the relationship between Red
Bank Regional and Millstone Township is clearly forbidden by
N.J.S.A. 18A:38-11 and -13 and cannot be allowed to continue any longer.
Even if Millstone Township's definition of "course of study" is used, there is no basis to send them to Red Bank Regional.
Even assuming that the Board is incorrect about all of its arguments set forth above and in its original brief, the undisputed material facts in this matter establish that Millstone Township's proposed definition of "course of study" can be easily met by the
Board's courses of study. To the extent Millstone Township is arguing that a course of study is a "set of classes and other educational elements that are coherent or put together in a fully- intentioned manner" and are a "program that leads to a final goal.
8 The same is true of those students in Red Bank Regional's culinary program, which also only occurs during a student's junior and senior years. (Lorfink Cert. Ex. A at 17). {F&H00113816.DOCK/6} 29 as opposed to a scattered curriculum," the Board offers this
through its Arts Academy, Engineering Academy, and its State-
approved CTE program in Information Technology. (Fitzpatrick Reply
Cert. M6-14). There is no doubt that the Board's courses of study
in these three areas are coherent and put together in a fully-
intentioned manner and lead to a final goal. Ibid. In the words of
Millstone Township, these Academy programs were designed to "^go
together;' they are part of a specifically designed series and
sequence of educational opportunities . . . ." (Millstone Twp. Br.
at 17; Fitzpatrick Reply Cert. M6-14). They are programs that
"leadH to a final goal, as opposed to a scattered curriculum."
(Millstone Twp. Br. at 16). Millstone Township cannot praise Red
Bank Regional's courses of study for the way it sequences its offerings to develop an integrated and comprehensive course of study while refusing to recognize this is exactly what the Board has done with Allentown High School's Arts Academy and Engineering
Academy, as well as its other Academy programs that are not relevant to this matter.
The Board carefully designed its courses of study for both its Arts Academy and its Engineering Academy. The Arts Academy was designed for those students with a demonstrated passion, talent, and commitment in Instrumental Music, Vocal Music, Theater, Dance,
Visual Art, and Video Production. (Fitzpatrick Cert. 16). Course sequences were designed in these six areas to broaden students'
{F&H00113816.DOCX/6} 30 artistic understanding and enhance their ability to perform.
create, critique, and compose. Id. SI7. In the Engineering Academy,
the Board designed a course of study to prepare students with the
skills necessary to pursue a career or further study in engineering
or engineering technology. Id. S[9. This goal is achieved through
the Engineering Academy's comprehensive curriculum that emphasizes
critical thinking, creativity, innovation, and real-world problem
solving. Id. SI10. The undisputed material facts clearly establish
that the Board's Arts Academy and Engineering Academy are a set of
classes and other educational elements that are coherent or put together in a fully-intentioned manner and lead to a final goal.
Additionally, the Board's State-approved CTE program in
Information Technology, (see Wright Cert. Ex. H at 3 (noting the
Board has approved CTE programs in Agriculture and Information
Technology)), must preclude Millstone Township from sending students to Red Bank Regional's Academy of Information Technology.
Since the Board has an approved CTE program, clearly its
Information Technology course of study "adheres to a set of standards, rigorously enforced by the DOE." (Millstone Twp. Br. at
14; Fitzpatrick Reply Cert. SI14) . All of Millstone Township's laudatory statements regarding the approved CTE programs at Red
Bank Regional must be equally applicable to the Board's CTE program in Information Technology.
Finally, there is no reason the Board's courses of study in
{F&H00113816.DOCK/6} 31 Culinary and Finance are any less coherent or "put together" than
Red Bank Regional's courses of study in its Academy of Finance.
(Fitzpatrick Cert. 1115-17). Students at Allentown High School can
take almost identical courses and both schools, like every high
school in this State, have the same goal of using their courses
and extracurricular activities to prepare their students' to be
successful and productive members of society, be that a future in college or in the workplace. More specifically, the Board's course of study in Culinary has been carefully designed to fit together as a sequence of educational opportunities to allow its students to acquire cooking skills as well as knowledge of cooking terminology, kitchen safety and sanitation, and nutrition basics.
Id. 117. Similarly, the Board's course of study in Finance seeks to prepare college bound students interested in degrees in business administration or accounting with the skills necessary to succeed in higher education as well as prepare students with the consumer and business skills needed for success in today's world. Id. 116.
To contend the Board's curriculum and courses of study do not lack a final goal because it does not present all of its offerings within an Academy or magnet program setting is simply a demeaning ad hominem attack by Millstone Township. Clearly all of the Board's courses of study in every subject area are coherent, thought-out. and well-developed systems to provide its students with the opportunity to master each subject area and prepare them for their
{F&H00113816.DOCK/6} 32 futures.
In sum, assuming Millstone Township proposes the correct
definition of "course of study," it is still prohibited from
sending students to Red Bank Regional's Academy of Visual and
Performing Arts, Academy of Information Technology, and Academy of
Engineering because the Board either offers a dedicated Academy
program, i.e • r a comprehensive and coherent course of study put
together in a fully intentioned manner leading to a final goal, or
offers a State-approved CTE program in the discipline that meets
the rigorous standards enforced by the State Department of
Education. Moreover, the lack of Academy programs in Finance and
Culinary in no way diminishes the strength and depth of the Board's course of study in each area. It clearly has available to all of its students a course of study in both finance and culinary.
Because there is no doubt the Board furnishes instruction in each of the courses of study Millstone Township students pursue at Red
Bank Regional, Millstone Township cannot send its students to pursue these courses at Red Bank Regional.
CONCLUSION
For the reasons set forth above. Petitioner, the Upper
Freehold Regional Board of Education, respectfully requests the
Court grant its Motion for Summary Decision and enjoin Millstone
Township from sending, and Red Bank Regional from receiving.
{FSH00113816.DOCX/6} 33 students for whom Millstone Township pays tuition to attend Red
Bank Regional.
Respectfully submitted,
FOGARTY & HARA, ESQS. Attorneys for Petitioner, Upper Freehold Regional Board of Education
BY i sbMHEti fk. FOGKRTY
DATED: September 15, 2016
{FSH00113816.DOCX/6} 34 FOGARTY & KARA, ESQS. 21-00 Route 208 South Fair Lawn, New Jersey 07410 (201) 791-3340 (201) 791-3432 Facsimile Attorneys for Petitioner, Upper Freehold Regional Board of Education Our File No. 101
STATE OF NEW JERSEY UPPER FREEHOLD REGIONAL BOARD OFFICE OF ADMINISTRATIVE LAW OF EDUCATION,
Petitioner,
v. OAL Dkt. No.: EDU 06068-16 Agency Ref. No.: 108/4-16 MILLSTONE TOWNSHIP BOARD OF EDUCATION AND RED BANK REPLY CERTIFICATION OF REGIONAL HIGH SCHOOL DISTRICT RICHARD FITZPATRICK BOARD OF EDUCATION,
Respondents.
I, RICHARD FITZPATRICK, Ed.D., of full age, do hereby certify as follows:
I am employed by the Upper Freehold Regional Board of
Education (hereinafter referred to as the "Board"), which operates the Upper Freehold Regional School District (hereinafter referred to as the "District") as Superintendent of Schools.
In my capacity as Superintendent of Schools, I have knowledge of the facts pertaining to the above-referenced matter. I submit this Certification in opposition to the Millstone Township
Board of Education's Motion for Summary Decision.
The Board operates Allentown High School which serves
students from the Borough of Allentown and Township of Upper
Freehold as well as students residing in Millstone Township through
a sending/receiving relationship.
4 Students residing in Allentown, Upper Freehold, and
Millstone Township are permitted to apply for entry to five Academy
programs that are hosted at Allentown High School: the Agriculture
Science Academy, the Arts Academy, the Engineering Academy, the
Tomorrow's Teachers Academy, and the Academy of Public and
International Affairs.
All interested students who reside in Allentown, Upper
Freehold, and Millstone Township who meet the admission requirements will be offered a place in an Academy.
6. The Board designed the Arts Academy for those students with a demonstrated passion, talent, and commitment in one or more of the following areas: Instrumental Music, Vocal Music, Theater,
Dance, Visual Art, and Video Production.
Course sequences in each of these six areas were specifically designed to broaden students' artistic understanding and enhance their ability to perform, create, critique, and compose. In addition, the Arts Academy offers students numerous opportunities beyond the school day to perform for a live audience or to present their work in adjudicated competitions.
{F&H00114508.DOCX/2} g The Arts Academy has a rigorous application process.
Students applying for Visual Art or Video Production must submit
a portfolio for evaluation while students applying for
Instrumental Music, Vocal Music, Theater, or Dance are required to
audition. Portfolio and audition requirements as well as
evaluation rubrics are available on the Arts Academy's website at
https://sites.google.com/a/ufrsd.net/ufrsd-new/home/choice/arts-
academy.
0 The Board designed the Engineering Academy to prepare students with skills and understandings from coursework leading to a career or further study in'engineering or engineering technology.
10. The Engineering Academy uses Project Lead the Way, a nationally recognized curriculum that is rigorous, interactive. and process based. It also provides students with the opportunity to explore and experience engineering through a comprehensive curriculum that emphasizes critical thinking, creativity. innovation, and real-world problem solving.
11. The Engineering Academy has a hands-on, project-based program that engages students on multiple levels, exposes them to subjects that apply the math and science learned in traditional courses, and provides them with a strong foundation for achieving their academic goals.
12. The Engineering Academy also offers its students the opportunity to participate in the FIRST Robotics Challenge, the
Panasonic Creative Design Challenge, and a variety of other
{F&H00114508.DOCX/2} competitive events. The Board also has a partnership with the Naval
Air Engineering Station in Lakehurst, New Jersey, allowing
students to learn about naval air engineering from experienced
aerospace engineers.
13. The application process for admission to the Engineering
Academy requires the prospective student to submit a letter of
interest explaining the student's desire to participate in the
program.
14. The Board also has a State-approved Career and Technical
Education program in Information Technology. To receive approval
from the State Department of Education, this course of study must
adhere to a set of standards that are rigorously enforced by the
Department. Through this course of study, our students have the opportunity to develop the skills necessary to succeed if they desire to enter the computer field after graduation or pursue further study in Information Technology in college.
15. The absence of a dedicated Academy program housing
Allentown High School's Business and Finance course of study does not mean that its courses have not been carefully designed to fit together as a sequence of educational opportunities in a fully- intentioned manner. The curriculum in this course of study was carefully designed to prepare students who wish to enter the business world after completing their high school education or who wish to prepare for a business career in college.
{F&HOO114508.DOCX/2} 16. Allentown High School/s course of study in Business and
Finance includes pre-professional courses to help college bound
students who are interested in pursuing a degree in business
administration or accounting, vocational courses to provide
students with the skills, competencies, and qualities necessary
for job attainment, and personal business courses to help students
increase their consumer and business sense, essential attributes
for success in today's world.
17. Allentown High School's Culinary Arts course of study
has similarly been carefully designed to fit together as a sequence
of educational opportunities to allow our students to acquire
cooking skills as well as knowledge of cooking terminology, kitchen
safety and sanitation, and nutrition basics.
18. A true and correct copy of Allentown High School's Course
Selection Guide is attached hereto as Exhibit A.
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.
$•=u. K m RICHARD FITZPATRIOK, Ed.D. Dated: September 15, 2016
{FSH00114508.DOCX/2) 5 CERTIFICATION OF GENUINESS OF ELECTRONIC SIGNATURE
I am an attorney-at-law of the State of New Jersey and an
associate in the law firm of Fogarty and Kara. I am fully familiar
with the facts and circumstances set forth herein.
The signature of Richard M. Fitzpatrick, Ed.D., is an
electronic transmission. Dr. Fitzpatrick advised me that he
executed the Certification and acknowledged the genuineness of his
signature prior to sending it to me by electronic mail. An original
of the signature page will be provided, if required.
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.
ROBERT D. LORFINK
Dated: September 15, 2016
{F&H00114508.DOCX/2}