On appeal from the State Board of Education.
Before Judges Michels, Skillman and Kestin.
The opinion of the court was delivered by SKILLMAN, J.A.D.
Appellant was employed by respondent Board of Education of the Borough of Shrewsbury (the Board) as a part-time speech correctionist and had acquired tenure in that position under N.J.S.A. 18A:28-5. In July of 1990, the Board voted to abolish appellant's position and to contract with the Educational Services Commission (ESC) of Monmouth County to provide speech correction services for the district's pupils during the 1990-91 school year. The Board agreed to pay the ESC $8,000 for speech correction services, compared to the slightly more than $20,000 salary it would have had to pay appellant.
Appellant filed a petition of appeal with the Commissioner of Education, asserting that the Board's actions violated her tenure rights and seeking reinstatement. An Administrative Law Judge (ALJ) concluded that a local board of education has the statutory authority to contract with an ESC to provide speech correction services and that the Board's sole motive in contracting with the Monmouth County ESC to provide these services, and in abolishing appellant's position, had been to save money. Consequently, the ALJ decided that the Board's actions did not violate appellant's tenure rights. The ALJ's initial decision was affirmed by the Commissioner of Education and the State Board of Education (the State Board).
In reviewing the State Board's decision, the threshold question is whether a local board of education has the statutory authority to contract with an ESC to provide speech correction services for its pupils. Each board of education has a responsibility "to provide suitable facilities and programs of education" for all handicapped children, N.J.S.A. 18A:46-13, which includes children who are "communication handicapped." N.J.S.A. 18A:46-1. A board of education may discharge its responsibility of providing special services for its handicapped pupils in a variety of ways, including:
a. A special class or classes in the district, . . .;
b. A special class in the public schools of another district in this State or any other state in the United States;
c. Joint facilities . . . to be provided by agreement between one or more school districts;
d. A jointure commission program;
e. A State of New Jersey operated program;
f. Instruction at school supplementary to the other programs in ...