On appeal from the State Board of Education, 112-6/09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 3, 2010 - Decided
Before Judges Carchman, Messano and Waugh.
On April 17, 2008, plaintiff P.P., an eighth-grade student at Pinelands Regional Middle School, was found with a single pill of an over-the-counter allergy medication, Alavert, in his locker. Defendant, the Board of Education of the Pinelands Regional School District (the Board), suspended plaintiff for five days. Almost eleven months later, on March 9, 2009, plaintiff filed this complaint. In the first count, brought as an action in lieu of prerogative writs, plaintiff alleged that the Board's action was ultra vires, specifically the Board's "zero tolerance policy" "exceed[ed] its authority under the governing statutes and regulations." In the second count, plaintiff alleged that the Board's policy violated his "procedural due process" rights under Article I, paragraph 1 of the New Jersey Constitution.
The Board asserted two affirmative defenses in its answer to the complaint. First, the Board alleged that Count One of the complaint should be dismissed because it was filed beyond the 45-day time limit contained in Rule 4:69-6. Second, the Board alleged that "[p]rimary jurisdiction over . . . Count [Two] of the Complaint [lay] with the Commissioner of Education [(the Commissioner)]." The Board moved to dismiss the complaint on both grounds.
On May 29, 2009, the Law Division judge granted defendant's motion and dismissed Count One with prejudice, finding it was time-barred by Rule 4:69-6(a). The judge dismissed Count Two without prejudice and "transferred" the matter to the Commissioner, concluding she had primary jurisdiction over the dispute.
The Office of Administrative Law (OAL) in turn transferred the matter to an Administrative Law Judge (ALJ) as a contested matter. The Board moved to dismiss the administrative complaint alleging it was time-barred. See N.J.A.C. 6A:3-1.3(i) ("a petition [shall be filed] no later than the 90th day from the date of receipt of the notice of a final order, ruling or other action by the district board of education"). The ALJ agreed that plaintiff's administrative complaint was time-barred.
In her final decision, the Commissioner concurred with the ALJ's determination that the administrative complaint was time-barred. With respect to the "weightier" constitutional challenge, the Commissioner concluded that "[a]dministrative agencies generally lack jurisdiction to decide purely constitutional claims." While "understand[ing] and empathiz[ing] with" plaintiff's frustration, the Commissioner determined that she "lack[ed] jurisdiction to decide [the] constitutional claims." Believing plaintiff could "re-file a facial [c]onstitutional challenge to [the Board's] zero tolerance drug policy in Superior Court," the Commissioner granted the Board's motion and dismissed the administrative complaint.
On appeal, plaintiff argues that the Law Division judge erred by dismissing the prerogative writ action as time-barred. He contends that the issue involves a matter of great public interest and implicates Constitutional questions; therefore, the judge should have relaxed the time constraints of Rule 4:69-6(a). Plaintiff further contends that the Commissioner should address the merits of his Constitutional challenge to the policy and seeks our order remanding the matter to the Commissioner with instructions that she decide the issue. We have considered these arguments in light of the scant record that exists. We affirm the dismissal of Count One of the complaint. However, we remand the matter to the Law Division for consideration of the merits of plaintiff's constitutional challenge in Count Two.
The substance of plaintiff's claims was never considered. The appellate record consists of some documentary evidence but it contains little else since discovery never occurred. At oral argument before us, the parties themselves supplemented the record to some degree, although we cannot conclude that factual disputes do not exist.
What appears undisputed is that the Board's 2008 Student Handbook contained an "Attendance/Discipline Policy" that required all students "to adhere to the rules and regulations established by the administration, and to comply with such disciplinary measures as assigned for infractions of the rules." The Code of Conduct prohibited "[d]rugs/[a]lcohol/[and] [c]hewing [t]obacco." "Misbehaviors" for which an "[o]ut-[o]f[s]chool suspension" could be imposed included a student's "[p]ossession . . . of any item . . . considered dangerous (e.g., weapons, drugs, alcohol, firecrackers, etc.)." Such conduct carried a five-day suspension, though the policy permitted modification at the discretion of the Principal or Assistant Principal. The policy further provided that "a parent conference will be arranged for the mutual convenience of the parent/staff/administration. It may occur the day of due process during the listed [suspension] days or the first day after the suspension."*fn1
The Board also adopted a separate policy regarding the administration of medication. It prohibited the administration of any medication to pupils unless the student's parents requested it in writing; then, only medical professionals would dispense the medication.
On April 18, 2008, plaintiff was suspended. In a letter to his mother, dated April 28, the assistant principal advised that plaintiff was suspended for five school days -- April 18, 28, 29, and 30, and May 1. The violation cited plaintiff's possession of an item that was "[i]llegal or [c]onsidered [d]angerous." We were advised that a parent/staff conference took place, though when that occurred is unclear. In any event, plaintiff's mother wrote the County Executive Superintendent, who responded to her on May 5. He noted that the school had provided him with a chronology of ...