For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Handler, J.
This appeal poses the issue whether counsel fees can be awarded in a proceeding brought before the Commissioner of Education based on unlawful gender-discrimination. In this case, a public high school student was barred from trying out for the school's football team because of her sex. She filed a complaint under the state's education laws with the Commissioner of Education charging the school board with unlawful discrimination. Following a consent order that allowed the student to participate on the football team, the student made an application for counsel fees. She asserted that such fees would have been recoverable had she brought the action before the Division on Civil Rights under the Law Against Discrimination. The right to such counsel fees is challenged, however, because there is no express statutory authorization for the award of counsel fees in actions brought before the Commissioner of Education under the education laws.
On August 16, 1985, Elizabeth Balsley (hereafter "Balsley" or "complainant"), then a student at North Hunterdon Regional High School, filed a petition with the Commissioner of Education (hereafter "Commissioner") against the North Hunterdon Board of Education (hereafter "school district" or "board") and Robert Hopek, the Athletic Director of the high school, challenging her exclusion from the high school football team. She contended that this exclusion violated the state's education laws, the equal protection provisions of the federal and state constitutions, and federal civil-rights provisions.
The Commissioner referred the matter to the Office of Administrative Law pursuant to N.J.S.A. 52:14F-1 to -11. Balsley applied for immediate interim relief. On August 20, the Administrative Law Judge (ALJ) recommended a restraining order prohibiting the board "from denying petitioner the opportunity to compete, try out and qualify for membership on the . . . football team." On August 22, the Commissioner adopted the ALJ's recommendation.
On August 28, the school board agreed not to oppose entry of the interim relief order as the permanent restraining order. Following a dispute over the form of the order, resolved on September 12, a permanent restraining order was entered confirming the student's right to participate on the football team. The next day, complainant moved before the Office of Administrative Law to amend her petition to include allegations based on the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (hereafter, "LAD"), and a request for attorney's fees and costs pursuant to N.J.S.A. 10:5-27.1. Over objection, the ALJ granted Balsley's motion.
On October 4, 1985, Balsley applied to the ALJ for an award of $9,882.50 in attorney's fees and $133.37 in costs. The school district and Hopek opposed the application. On March 14, 1986, the ALJ entered an Initial Decision finding that although the Commissioner of Education does not have the authority to award counsel fees pursuant to the attorney's-fees provision of the LAD, N.J.S.A. 10:5-27.1, or the federal civil-rights attorney's-fees provision, 42 U.S.C. § 1988, the Commissioner could award a fee under the state's education laws, N.J.S.A. 18A:1-1 to :76-4. He awarded Balsley counsel fees of $5,343.75. On May 1, 1986, the Commissioner rejected the ALJ decision, ruling that the education laws do not authorize the award of attorney's fees. On September 3, 1986, the State Board of Education affirmed the Commissioner's decision.
The Appellate Division reversed the State Board, holding that although the Commissioner of Education did not have authority
to award counsel fees under the education laws, he could award attorney's fees under the LAD. Balsley v. North Hunterdon Regional High School, 225 N.J. Super. 221 (1988). This Court granted the petition of the school board and Hopek for certification, 114 N.J. 287 (1988).
The Division on Civil Rights under the Law Against Discrimination is empowered to award counsel fees as a remedy for a successful complainant. The State's education laws contain no express authority that enables the Commissioner of Education to award counsel fees as a remedy to a complainant for acts of discrimination in violation of the education laws. The issue before the Court is whether the Commissioner of Education may award counsel fees as a remedy to a complainant who succeeded in her gender-discrimination claim brought before the Commissioner under the education laws and who in the course of those proceedings asserted that her gender-discrimination claim also constituted a violation of the Law Against Discrimination, entitling her to counsel fees.
The State's education laws provide that the Commissioner of Education has jurisdiction to determine all controversies and disputes arising under those laws. N.J.S.A. 18A:6-9. The education laws further provide:
No pupil in a public school in this State shall be discriminated against in admission to, or in obtaining any advantages, privileges or courses of study of the school by reason of race, color, creed, sex or national origin. [ N.J.S.A. 18A:36-20.]
Clearly, the claims of public-school pupils based on unlawful discrimination in education are controversies or disputes under N.J.S.A. 18A:6-9.
The Appellate Division agreed with the conclusion of the Commissioner and the State Board that the Commissioner "does not have plenary authority to award counsel fees in determining 'controversies and disputes' presented to him under N.J.S.A. 18A:6-9." 225 N.J. Super. at 225. Nevertheless,
the Appellate Division concluded that the Commissioner could award counsel fees in this case. It reasoned that, under the circumstances, the Commissioner of Education could invoke the remedial authority provided by the LAD. That power specifically included the authority to award counsel fees pursuant to N.J.S.A. 10:5-27.1, which provides that "[in] any action or proceeding brought ...