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Received Nicholas A 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.
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