On appeal from the Commissioner of Education, Docket No. 185-7/07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
Appellant, J.G., acting on behalf of her son, C.G., appeals from the January 11, 2008 final decision of the Commissioner of Education (Commissioner), which affirmed the initial decision of the Administrative Law Judge (ALJ), dismissing as untimely appellant's petition to expunge student records of C.G. From our review of the record, we are satisfied that the Commissioner's decision was supported by substantial credible evidence in the record, was not arbitrary, capricious or unreasonable, and was in compliance with the controlling legal principles. Accordingly, we affirm.
Appellant and her son were residents of Pleasantville. The Galloway Community Charter School (GCCS), a kindergarten through eighth grade school, is located in Galloway Township. After initially attending Pleasantville public schools, C.G. transferred to GCCS in the 2004-2005 school year, when he entered the sixth grade. C.G. is a special needs student. His Individual Education Plan (IEP) provided for an "inclusion setting," by which he would participate in regular classroom instruction.
While in the seventh grade, C.G. encountered disciplinary issues. He was suspended for one day on September 29, 2005 for taking pictures of a boy at the urinal in a school bathroom. On May 25, 2006, he received a nine-day suspension, resulting from a series of very disturbing comments he made to or in the presence of other students. We need not repeat the comments here. It is sufficient to say they were of a graphic sexual and violent nature.
Appellant has not denied that the events for which he was disciplined occurred. Appellant never filed any appeal of the discipline that was imposed. It is the refusal of GCCS and the Commissioner to expunge from C.G.'s file the records of these incidents that is in dispute.
In June 2006, J.G. filed a due process request, which was settled on July 11, 2006. The settlement provided for development of a new IEP. After the settlement was effected, in July 2006, all of C.G.'s records were furnished to J.G. With the assistance of counsel, she sought removal of these materials from C.G.'s file. According to GCCS, it informed J.G. on or about August 15, 2006 that it would not remove the records from C.G.'s file. This notice was purportedly by virtue of an August 15, 2006 letter, which is not part of the record on appeal, from GCCS's attorney to J.G. At oral argument before us, counsel for GCCS represented that the same message was communicated to J.G. by telephone.
On August 21, 2006, J.G. wrote a letter to GCCS. She expressed her disappointment in not being able to resolve the primary issue of placement of C.G. for the upcoming school year. And, with reference to removal of the records, she wrote: "So I do hereby give notice to GCCS Board of Trustees, that I do fully appeal their decision to keep certain records in my son's files." Therefore, although the appellate record does not contain the purported August 15, 2006 letter or evidence of the purported telephone communication with J.G., J.G.'s statement in her August 21, 2006 letter confirmed that she had been told of GCCS's "decision to keep certain records in [her] son's files." In her August 21, 2006 letter, J.G. further expressed her belief that C.G. needed "new and independent evaluations done, and a new IEP performed by an independent team."
J.G. filed a second due process complaint, which resulted in a September 18, 2006 settlement providing for home instruction while alternative education was explored. According to J.G., the parties also agreed to preserve any records issue, which J.G. had raised in her pleading, for future consideration.
In September 2006, J.G. filed a third due process complaint and sought emergent relief. The matter came before an ALJ on October 4, 2006. At that time, a consent order was entered, which provided for homebound instruction, followed by home instruction. The order further provided that new psychological evaluations would be performed, and upon their completion and issuance of reports, an IEP meeting would be held. The order contained this final provision: "The Petitioner reserves all rights to future action with respect to any program, placement, and record issues." (emphasis added). By March 28, 2007, the psychological evaluations were completed, the IEP meeting was conducted, and C.G. was readmitted to GCCS.
On June 29, 2007, appellant filed her petition with the Commissioner seeking expungement of C.G.'s records. Appellant moved for partial summary disposition. In its response, GCCS argued that summary disposition in J.G.'s favor was not warranted, ...