Before Judges Stern, Collester and Fall.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the New Jersey State Board of Education.
The Tenafly Board of Education appeals from a final administrative determination of the State Board of Education entered on January 5, 2000, reversing the Commissioner of Education and concluding that Tenafly is required to provide a free public education to E.Y., who was residing in Tenafly with his uncle, P.B.K.
The salient facts at times pertinent to this appeal are that E.Y. was born in California and is a citizen of the United States. He lived with his parents in Seoul, South Korea until December 1996, when he was sent to live with his aunt and uncle in Tenafly. The Tenafly Board of Education does not dispute P.B.K.'s domicile in Tenafly or E.Y.'s residence with P.B.K. It was also conceded that P.B.K. was supporting E.Y. without assistance from E.Y.'s parents.
At the time of his arrival in December 1996, E.Y. was fifteen years old. Within the same month P.B.K. sought to enroll his nephew in the ninth grade of the Tenafly School District. The school district gave him "school affidavit forms" for both P.B.K. and E.Y.'s parents to fill out and submit. In response to the question on the form as to why E.Y. was not living with his parents, the answer given both by P.B.K. and E.Y.'s father was that the parents resided in South Korea and E.Y. wanted to continue his education in the United States.
By letter of January 8, 1997, the Board of Education rejected E.Y.'s enrollment in the Tenafly school system because, "the desire to be educated in the United States is not a 'personal or financial hardship'" under N.J.S.A. 18A:38-1(a). P.B.K. then petitioned the Commissioner of the Department of Education ("Commissioner"), seeking immediate access for E.Y. to the Tenafly Public School System pending appeal and final determination of his right to a free education within the school district. In accordance with N.J.S.A. 18A:38-1(b) E.Y. was enrolled in the Tenafly school on March 5, 1997, pending outcome of the petition. The Commissioner transferred the matter to the Office of Administrative Law for a hearing before an administrative law judge ("ALJ") as a contested case pursuant to N.J.S.A. 52:14B to -15 and N.J.S.A. 14F-1 to -13.
Prior to the scheduled hearing, the Tenafly Board of Education filed a motion for summary decision. After receipt of briefs from the parties, the ALJ denied Tenafly's motion. However, she elected to treat P.B.K.'s request for relief as a cross-motion for summary disposition and ordered that E.Y. be admitted to the Tenafly school district for a free public education.
The ALJ set forth the following findings and conclusions:
In this case[,] E.Y. has relatives domiciled in the United States who are willing to support him gratis, and [it is] this fact, more than a specific desire to go to school in Tenafly, that has dictated E.Y.'s choice of residence. Indeed, the fact that residency was established in Tenafly is purely happenstance. If his uncle had resided in Leonia, for example, E.Y. would have enrolled in that school district. Thus, I FIND E.Y. is not seeking to be educated in Tenafly solely for the purpose of receiving a free education within the district.
I FIND that E.Y. has met the requirements of the "affidavit student" law as articulated by the Commissioner in [Gunderson v. City of Brigantine Bd. of Educ., 95 N.J.A.R.2d (EDU) 39] E.Y. has no home, or possibility of school attendance, other than with the non-parent district resident and . . . such resident is for all intents and purposes the sole caretaker and supporter of the child. Ibid. It is undisputed that the petitioner has taken full charge of E.Y.'s welfare, and is currently in the process of obtaining guardianship over E.Y. As noted by petitioner, E.Y. would otherwise have no entitlement to an education anywhere in the U.S.. The spirit of the law in this case should control over the letter, for to hold otherwise would work a substantial injustice by harming a party the legislature never meant to penalize, and would subvert the state's interest in providing an education for its children. For the foregoing reasons, I CONCLUDE that E.Y. is entitled to admittance in the respondent's school district.
The Tenafly Board of Education filed exceptions to the ALJ decision with the Commissioner. On October 14, 1997 the Commissioner reversed the decision of the ALJ and directed that P.B.K. remit tuition pursuant to N.J.S.A. 18A:16-1 to the Tenafly Board of Education prorated to the first date of E.Y.'s attendance at a Tenafly school. The decision reads as follows:
Initially, the Commissioner concurs with the ALJ's and the Board's view that, since petitioner has not brought forth proof that he has gained legal custody of his nephew, then E.Y. cannot be found to be domiciled with him, since the domicile of an unemancipated minor follows that of the parent or guardian having legal control over him.
Here, both petitioner and E.Y.'s parents have specifically affirmed that E.Y. is living with his uncle because he "wants to continue his education in the United States." Further, as the Board noted in its exceptions, petitioner has not established, nor has he even claimed, that E.Y.'s parents, due to family or economic hardship, are not presently capable of supporting or providing care for E.Y.; instead, petitioner incorrectly argues that this provision of the statute is inapplicable in this matter. In this regard, the Commissioner is cognizant of the State Board's recent guidance concerning a petitioner's burden to ...