On appeal from the Commissioner of Education, the State Board of Education and the Superior Court of New Jersey, Chancery Division, Union County.
Michels, Gaulkin and Stern. The opinion of the court was delivered by Michels, P.J.A.D. Gaulkin, J.A.D., concurring in part and dissenting in part.
[209 NJSuper Page 179] These cases involve challenges to certain policy guidelines for the admission to school of children with AIDS/ARC and HTLV-III antibody promulgated by the New Jersey State Board of Education through respondent Saul Cooperman, Commissioner of Education (Commissioner). Pursuant to these guidelines, the Commissioner has ordered that the Board of Education of the City of Plainfield (Plainfield Board) and the Board of Education of the Borough of Washington (Washington Board) each admit a kindergarten-aged child to regular classroom attendance within
its district. Both school boards have appealed the Commissioner's orders and have challenged the validity of the guidelines. These appeals, therefore, have been consolidated.
The Plainfield Board and the Washington Board contend generally that: (1) the guidelines promulgated by the Commissioner constitute administrative rules under this State's Administrative Procedure Act and, as such, they were not adopted in compliance with the terms of that act; and (2) the guidelines are invalid because they conflict with existing statutes and administrative regulations. With respect to this contention, it is specifically alleged that the guidelines conflict with this State's school laws, which grant local boards of education power to deal with the health and welfare of the student body, and with provisions of the New Jersey Administrative Code, which provide for the evaluation, classification and education of handicapped children and which place the responsibility therefor on district child study teams. The Washington Board further contends that the guidelines are arbitrary, unreasonable and premature.
To better understand the decision we reach today, we deem it necessary to initially set forth the background giving rise to each of these appeals.
The Plainfield Board Case
The Plainfield Board appeals from a decision of the State Board of Education, affirming an order of the Commissioner dated October 3, 1985, which directed that it immediately admit a child, identified only as I.C., "to regular classroom attendance in the same manner and [on] the same basis as [it] would admit any other child eligible for school attendance."
I.C. is a five year old female who is currently under the guardianship of the Division of Youth and Family Services
(DYFS).*fn1 The child has resided in Plainfield, New Jersey with her foster parent, Mrs. D.W., on a regular basis since March 16, 1982. Two months after I.C.'s birth on October 23, 1980, she was hospitalized and it was determined that she was "failing to thrive" due to inadequate parental care. Thereafter, the child became critically ill with infantile botulism and was subjected to intensive hospital treatments, which included blood transfusions. In 1982, I.C. was diagnosed as having Acquired Immune Deficiency Syndrome, which is more commonly known by its acronym, AIDS.
On October 13, 1983, I.C. was accepted into a pre-school program run by the Plainfield Board. However, approximately one month later, on November 17, 1983, I.C. was withdrawn at the school district's request, after it was learned that she had been diagnosed as having AIDS. In January of 1984, the Plainfield Board advised Mrs. D.W. that it had consulted I.C.'s treating physician, James M. Oleske, M.D., the Director of the Division of Allergy, Immunology and Infectious Diseases at University of Medicine and Dentistry of New Jersey, and was searching for an appropriate physician to render a second opinion as to the feasibility of the child returning to the pre-school program.
Lawrence D. Frenkel, M.D., a professor of Clinical Pediatrics and Director of the Division of Immunology, Allergy and Infectious Diseases at Rutgers Medical School was subsequently chosen by the Plainfield Board to render a second opinion as to the advisability and safety of I.C.'s admission to school. After reviewing I.C.'s medical records, Dr. Frenkel reported on March 2, 1984 that:
Dr. Olesky [sic] is The world's authority on childhood AIDS, and from the data I have, there is absolutely no reason to doubt the diagnosis. Using the therapeutic regime that Dr. Olesky is using, I.C. would be protected from the vast
majority of common infectious diseases that might strike the normal child. In terms of an infectious agent causally related to AIDS syndrome, to the best of our current knowledge it takes an extremely intimate interaction or blood transfusion to pass these infections. It is my strong opinion (and that of most of my colleagues around the United States who are following children with AIDS or involved with this disease on a research basis) that these children should not be kept out of schools and do not seem to pose a risk to other children in their environment. [Emphasis in original].
Notwithstanding the advice of both Dr. Oleske and Dr. Frenkel, indicating that I.C. should not be kept out of school, the Plainfield Board refused to readmit the child to its pre-school program. Instead, in March 1985, the Plainfield Board began providing I.C. with pre-school home instruction.
After the Plainfield Board became aware that it would have to address the problem of educating I.C. within its district, it sought the advice of the State Departments of Education and Health. On March 12, 1985, the Plainfield Board inquired of the Union County Superintendent of Schools whether there were any applicable State regulations regarding the enrollment of a public school student with AIDS. The Union County Superintendent responded that, as of March 20, 1985, there were no such regulations in existence. However, he advised that a policy statement on this subject was being sought from the Attorney General's office.
On June 5, 1985, I.C.'s foster mother initiated kindergarten registration at a Plainfield elementary school. Thereafter, the Plainfield Superintendent of Schools again sought the assistance of the Union County Superintendent on June 21, 1985, inquiring whether a policy statement concerning school-age children with AIDS had been secured from the State. However, as of June 1985, no such policy had been established.
While the Plainfield Board was awaiting advice from the State as to the enrollment of I.C., it began to collect information from other states which were dealing with similar problems. "Guidelines for Children with AIDS/ARC Who Are Attending School" were received from the Indiana State Board of Health and "Information and Guidelines on the Prevention of
Disease Transmission in Schools (AIDS)" were forwarded by the State of Connecticut. The Connecticut guidelines were modeled closely upon those promulgated by the Florida Department of Health and Rehabilitative Services. In addition, the Plainfield Board reviewed "A Special Report on Acquired Immunodeficiency Syndrome" prepared for the New York City schools.
On August 30, 1985, the State Commissioners of Health and Education jointly announced the adoption of policy guidelines for the admission to schools of children with AIDS. These guidelines entitled, "Admission to School of Children with AIDS/ARC or HTLV-III Antibody," were promulgated to county superintendents by Walter J. McCarroll, a representative of the Commissioner of Education, on September 3, 1985. The original policy guidelines were revised and reissued with attachments on or about October 25, 1985.
According to the Commissioner of Education, these policy guidelines are based upon epidemiological studies indicating "that AIDS is not transmitted through casual contact as would be present in a school environment." Pursuant to the guidelines, children with AIDS/ARC or HTLV-III antibody are required to be admitted to regular school attendance, unless the following exceptional conditions are evident:
a. The student is not toilet-trained or is incontinent, or otherwise is unable to control drooling.
b. The student is unusually physically aggressive, with a documented history of biting or harming others.
The revised guidelines further established the procedures to be followed by local boards of education seeking to exclude students with AIDS, specifically providing:
1. Any determination to exclude a child with AIDS/ARC who is enrolled or seeking enrollment in a school program shall be based solely upon conflicting medical opinion as specified in the state policy. When such conflicting opinion as to the admissibility of a child with AIDS/ARC exists, the school medical inspector on behalf of the board must submit all requested information as
contained in "AIDS Contested Admissions Referral Check List" and transmit same to the county superintendent of schools.
2. The county superintendent of schools will immediately notify the Assistant Commissioner for County and Regional Services of the need for a review by the Medical Advisory Panel and immediately transmit the information required by the above cited check list.
3. The Assistant Commissioner for Executive Services shall immediately request the designated official within the Department of Health to convene the Medical Advisory Panel at the earliest possible time and shall transmit the written documentation for panel consideration.
4. The review panel will consider the written documentation submitted by the local district and/or such personal testimony as may be necessary to render its determination.
5. It shall be the obligation of the local school board to immediately submit a request for panel review of contested cases. The Medical Advisory Panel shall, within a period of four weeks from the date of exclusion, render a written recommendation to the Commissioner of Education as to whether the district has met its burden of proof to deny admission of the child. Exceptions to the timeline shall be permitted for the Medical Panel based upon extenuating circumstances.
6. The written determination of the Medical Advisory Panel shall be transmitted to the Commissioner of Education. Upon his review of the panel findings, the Commissioner of Education shall either direct the immediate enrollment of the child into an appropriate educational setting or, if determined otherwise by the review panel, confirm the district's determination to exclude the child from such setting and direct an alternate program of education. Copies of this determination and the Medical Advisory Panel findings will be forwarded to the Commissioner of Health and the appropriate county superintendent of schools. [Emphasis in original].
On September 3, 1985, the same day that the original policy guidelines were forwarded to the Union County Superintendent of Schools, the Plainfield Board voted to continue to provide home instruction to I.C.,*fn2 pending completion of a child study team evaluation, thereby excluding her from regular kindergarten public school education. This child study team evaluation, by a school psychologist, a learning disability teacher consultant,
a speech therapist, a school social worker and a school physician, was initiated to ascertain if I.C. would be eligible for special education services, due to an educational handicap.*fn3 On October 4, 1985, the child study team rendered its full report which recommended that I.C. be classified as neurologically impaired.
In its report, the child study team concluded that the "most appropriate and least restrictive educational placement" for I.C. would be "a program for Neurologically Impaired students." In specifically addressing I.C.'s affliction with AIDS, Margaret E. Symonds, M.D., a neurologist and child study team member, recommended:
I.[C.] needs a structured program with input from a learning disability specialist. She should have individual speech therapy. Appropriate classroom placement would be a Pre-K-Handicapped Program, otherwise in view of her dyspnea, home instruction would be appropriate.
As this child is toilet trained and is of an unaggresive personality, she should not represent danger as a source of infection to other students or teachers handling her.
In response to the action by the Plainfield Board excluding I.C. from public school attendance, DYFS, as the child's guardian, filed a petition for relief and declaratory judgment with the Commissioner, pursuant to N.J.S.A. 18A:6-9, to determine the validity of the Plainfield Board's action. The petition alleged that I.C. had been illegally and unconstitutionally denied her right to a free public education. On September 9, 1985, the parties agreed that this petition would be "held in abeyance so long as the Plainfield Board of Education [remained] in full compliance with the procedures and policies established by the Commissioners of Health and Education for reviewing and
making determinations relative to school admission for children with AIDS/ARC."*fn4
In accordance with this agreement and pursuant to the aforementioned guidelines, the Plainfield Board was directed by the Union County Superintendent of Schools to provide him with its medical reasons for excluding I.C. from its regular school program. On September 8, 1985, John E. Hampton, M.D., the school's medical inspector, provided a written medical report based upon his review of I.C.'s medical records. In this report addressed to both the Union County and Plainfield Superintendents of Schools, Dr. Hampton opined:
The child described in the medical records which you supplied me appears to be acutely and chronically ill. On the basis of her blood count alone, there is adequate evidence to support a statement that she is too sick to attend a public school. As a physician . . . I would certify this child as being eligible for home instruction on the basis of this medical record.
This report was supplemented by another rendered by Dr. Hampton on September 11, 1985. In this second report, completed after a review of the clinical medical records of I.C., the doctor further noted:
It is very likely that without addressing the very troublesome problem of possible transmission of AIDS from this child to her peers that there will be adequate grounds for exclusion solely based on the child's multiple handicaps and her overwhelming tendency to acquire bacterial and viral infections. In an ordinary preschool or elementary school classroom this child could expect to be exposed to impetigo, bacterial pharyngitis, chicken pox, herpangina, viral and bacterial gastroenteritis, influenza and a large number of variants of the common cold, any of which could be fatal to a child with markedly depressed immunity.
These reports were forwarded to a special panel of independent medical experts, appointed by the Department of Health, along with documentation from I.C.'s treating physician, Dr. Oleske. In August 1985, it was Dr. Oleske's opinion, both as Chairman of the New Jersey State AIDS Advisory Subcommittee and as the physician of I.C.:
that she be allowed to matriculate in elementary school. Her recovery from AIDS has been sufficient [sic] that I feel she is well enough to attend school.
In a school setting, I.C. does not pose a risk of transmission of the HLTV-III virus to other children or school staff.
In a subsequent written report rendered on September 26, 1985, Dr. Oleske outlined I.C.'s clinical medical improvement since 1982, concluding that "[s]he is one of a few children we have followed who ha[s] stabilized and appears clinically well enough to attend school."
The Medical Advisory Panel (Panel), chaired by Ronald Altman, M.D., the Assistant Commissioner of the State Department of Health in the Division of Epidemiology and Disease Control, met on September 13, 24 and 26, 1985 to consider whether I.C. should be allowed to attend school. During these sessions, the Panel had at its disposal the following documentation: (1) A letter from Dr. John E. Hampton, dated September 8, 1985; (2) A letter from Dr. John E. Hampton, dated September 11, 1985; (3) A letter from Dr. James M. Oleske, dated August 2, 1985; (4) A letter from Dr. James M. Oleske, dated September 26, 1985; (5) A psychological evaluation by Ellen Crowley, dated December 27, 1984; and (6) Another psychological evaluation by Dr. Sherwood Chorost, dated January 31, 1985. In addition, Dr. Hampton personally appeared before the Medical Advisory Panel on September 24, 1985. The Plainfield Board, however, had no contact with the Panel. The board was not requested to submit I.C.'s complete medical records and it was never advised that its medical inspector had made an appearance before the Panel.
After considering the documentation and testimony, the Medical Advisory Panel rendered an advisory letter to the Commissioner on October 2, 1985, which concluded:
The current medical data supplied to the Panel are that the child has no medical condition such as described in the recommendations. Reports of the child's behavior describe no tendencies toward behavior which could possibly be related to spread of infection. These data do not support exclusion of the child from school.
Following the recommendation of the Medical Advisory Panel, on October 3, 1985, the Commissioner issued a decision directing the Plainfield Board to "immediately admit I.C. to regular classroom attendance in the same manner and [on] the same basis as [it] would admit any other child eligible for school attendance." In his decision, the Commissioner cautioned that although I.C. was "being evaluated for possible classification as educationally handicapped," the Plainfield Board could not use this as an excuse "for not placing I.C. in a regular classroom environment." The Plainfield Board responded to the Commissioner's order by requesting an additional 30 day period within which to achieve placement of I.C. Notwithstanding this request, an action to enforce compliance with the Commissioner's order was brought by the State on October 10, 1985 in the Superior Court, Chancery Division.
On October 15, 1985, prior to the return date of an order to show cause issued by the Chancery Division judge, the Commissioner responded to the notification of I.C.'s neurological impairment which he had received from the Plainfield Board, specifically noting:
In light of the fact that the least restrictive environment by regulation is a program in the school or the school district in whose attendance area the pupil resides, please be informed that your program placement recommendations will be required to meet the absolute letter and spirit of the law.
I would caution you that I.C., who has been determined by the Medical Advisory Panel not to be excludable from school, has an absolute right to a constitutionally guaranteed thorough and efficient education without restraint. Her continued exclusion is not in conformity with law nor with the policy guidelines established by the Department of Health which permitted such temporary exclusion only until such time as it had considered the reasons presented by your medical advisors to justify the exclusion. Now that the Medical Advisory Panel has reached its determination, you are reminded that under the special education regulations, a child being considered as potentially eligible for special education services must remain in his or her placement until such time as the evaluation is completed, the IEP is developed and an appropriate placement effectuated. In I.C.'s case, such placement should have been in a regular kindergarten classroom. Therefore, you are hereby directed to admit I.C. no later than Monday, October 21, 1985 to the regular kindergarten program which she would have attended and to which she was legally
entitled had the Department of Health's policy advisory on AIDS/ARC not been invoked.
In the alternative, and in light of your child study team's determination that I.C. is eligible for special education services you are hereby informed that you may by the same date place I.C. in a special education program consistent with the classification as determined by the evaluation. Since I am aware that your district has a special education program which is within the area of classification of I.C. and also within her age group, no external placement will be permitted which does not fully conform to the requirement of placing a child in the "least restrictive environment." [Emphasis supplied].
On October 17, 1985, the Plainfield Board appealed both from the policy guidelines promulgated by the Commissioner on September 3, 1985 and from the Commissioner's decision of October 3, 1985 directing that it admit I.C. to regular classroom attendance. In addition, the Plainfield Board made an emergent application to this court on October 23, 1985, seeking a stay of the pending proceedings to enforce the Commissioner's order. We denied this application and transferred the matter to the State Board of Education with the consent of both parties.
On October 15, 1985, the return date of the order to show cause, the Chancery Division judge determined that he had "jurisdiction over the matter for the limited purpose of enforcement without determining the validity of the Commissioner's order." He thereafter directed that the Plainfield Board immediately admit I.C. to classroom attendance. The execution of this order, however, was stayed until November 8, 1985. In the interim, the Plainfield Board moved before the Commissioner, pursuant to N.J.A.C. 6:2-1.16, for a stay of his order of October 3, 1985. Although the Commissioner denied this motion, he delayed enforcement of the order until the State Board of Education decided the matter on the administrative appeal.
On November 8, 1985, the State Board of Education determined that, in accordance with N.J.A.C. 6:2-1.14, "oral argument [was not] necessary in order for [it] to arrive at a fair determination in th[e] case." It concluded that the Commissioner's actions, in directing I.C.'s admission to school, had been proper, emphasizing that:
due process of law does not require a trial type administrative hearing as to nonfactual issues. Trial procedure is not required on issues of law, policy or discretion. [Citations omitted]. Thus, once the medical determination was made that I.C.'s medical condition did not warrant excluding her from school, it was reasonable and within his authority for the Commissioner of Education to direct her admittance to school. [Citations omitted].
In affirming the propriety of the Commissioner's Order directing I.C.'s admittance to school, [the State Board] emphasize[s] that the questions of the child's classification as educationally handicapped and her appropriate placement are not before [it]. We, however, caution the Board that this child must be treated just like any other child who has been classified as eligible for special education services. [Citation omitted].
On November 13, 1985, the Plainfield Board appealed this final decision to this court and immediately moved for emergent relief. We stayed the order of the Commissioner, dated October 3, 1985, the final decision of the State Board of Education, dated November 8, 1985, and the order of the Chancery Division, dated October 31, 1985, pending appeal. Furthermore, we accelerated the appeal on our own motion and set it down for oral argument, along with the appeal by the Washington Board.
The Washington Board Case
The Washington Board similarly appeals from the policy guidelines promulgated by the Commissioner, relating to the admission of school-age children with AIDS/ARC or HTLV-III antibody. It additionally appeals from the Commissioner's order of November 4, 1985, directing it to admit a five year old child, identified as Jane Doe, to regular kindergarten classroom instruction.
Jane Doe and John Doe are, respectively, a five year old girl and a nine year old boy, who are currently under the legal guardianship of DYFS. In July of 1985, Mrs. Doe, a resident of Washington Borough, contacted the Superintendent of Schools in the borough to advise that she was in the process of adopting these children and wished to register them for school for the 1985-1986 term. Mrs. Doe indicated that she wished to enroll John Doe in ...