On appeal from Director of Division on Civil Rights.
Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.
[171 NJSuper Page 550] On December 6, 1978 Dr. Felicia B. Jamison filed a verified complaint with the Division on Civil Rights in which she claimed that the Board of Education of Rockaway Township, Morris County (Board), and certain named individuals associated therewith, in violation of N.J.S.A. 10:5-4, had discriminated against her because she was a member of the black race. Specifically, she claimed that she was rejected for the position of assistant
principal of the Birchwood Elementary School and that the position was given to another person, notwithstanding that she, Jamison, was better qualified.
The Board duly filed its answer, denying that Jamison was rejected because of her race and denying that it discriminated against her. Both by way of a separate defense and by way of a specific motion the Board sought to obtain a transfer of the controversy to the Commissioner of Education (Commissioner). The Board asserted that the latter "tribunal" had concurrent jurisdiction with the Division and was the "more appropriate forum for the resolution of the issue." In both its answer and its motion the Board cited Hinfey v. Matawan Bd. of Ed. , 77 N.J. 514 (1978), as authority for its request to transfer.
The Board initiated this appeal by leave of court when the Division denied its motion to transfer the controversy to the Commissioner.
At the outset, the parties appear to agree that at least as to appropriate cases involving public schools the Division and the Commissioner have concurrent jurisdiction of discrimination complaints, and that a transfer from the Division to the Commissioner in such cases may be made.*fn1 The Board conceded at oral argument that fundamentally our review was limited to a determination of whether the Division's denial constituted an appropriate exercise of its discretion or whether it constituted an arbitrary and capricious abuse of its discretion. Our review leads us to conclude that the Division's ruling was not arbitrary or capricious. Consequently we affirm.
Although Hinfey, supra , recognized that the Division and the Commissioner enjoyed concurrent jurisdiction in appropriate situations, it did not hold that all cases involving school problems should be decided by the Commissioner. Hinfey was concerned with discrimination complaints which principally involved public school curricula and courses of study.*fn2 These, it held, should be transferred from the Division to the Commissioner.*fn3 Here, however, there is no such broad panoply of alleged discriminatory practices. Rather, the issue is simply whether Jamison was not appointed because of her race -- allegedly an employment discrimination.
The Board would define the issue solely in terms of whether the successful appointee to the position was better qualified. Thus, it argues that the Commissioner is more competent to decide such issue. The Board's definition of the issue is spurious. Qualifications certainly would be relevant to the issue of race discrimination, but that is not the issue itself. Cf. Peper v. Princeton Univ. Bd. of Trustees , 77 N.J. 55, 82-83 (1978). And as to the real issue of discrimination in such cases the Division is completely competent. This is not to say that the Commissioner or other experts may not be called upon to furnish opinions in the Division proceeding.
The Division's authority to render decisions regarding discriminatory employment practices in the public educational system and the public sector in general has been exercised in the following cases: Countiss v. Trenton State College , 77 N.J. 590 (1978) (sex discrimination in tenure-reappointment policy); Castellano v. Linden Bd. of Ed. , 158 N.J. Super. 350 (App.Div.1978), rev'd in part, 79 N.J. 407 (1979), and Gilchrist v. Haddonfield Bd. of Ed. , 155 N.J. Super. 358 (1978) (sexually discriminatory sick
leave policy); Decker v. Elizabeth Bd. of Ed. , 153 N.J. Super. 470 (App.Div.1977), certif. den. 75 N.J. 612 (1978) (woman received ...