On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1124-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2010 - Decided Before Judges Sabatino and Alvarez.
Plaintiff Adam Gutin appeals the Law Division's dismissal of his complaint against the Board of Education of Washington Township in Gloucester County ("the School Board"). The complaint was mainly dismissed because of plaintiff's failure to exhaust his administrative remedies. For the reasons that follow, we affirm.
This appeal stems from the School Board's expulsion of plaintiff from the Washington Township High School ("the high school") in 2000, after he had twice tested positive for illegal drug use. Although the protracted history of the dispute is complicated, we recite the key events and proceedings to the extent they are pertinent to our analysis.
During the 1999-2000 academic year, plaintiff, then fifteen years old, was enrolled as a freshman at the high school. By that point, plaintiff had been diagnosed with attention-deficit disorder ("ADD").
On December 21, 1999, plaintiff was suspected of being under the influence of drugs while at school. A urinalysis revealed the presence of marijuana in plaintiff's system. As a result, plaintiff was suspended from school for a total of ten days: five days of external suspension, followed by five days of internal suspension. As a further consequence, plaintiff was thereafter subjected to random drug screens. During such a random drug screening on February 22, 2000, plaintiff again tested positive for marijuana.
After plaintiff's second positive drug screening, the high school's Child Study Team ("CST") conducted a hearing on March 3, 2000 to determine whether plaintiff's drug use was a manifestation of a disability, i.e., his ADD. The CST determined that his conduct was not a manifestation of his ADD and that plaintiff was therefore subject to the school's general disciplinary procedures and consequences. Neither plaintiff nor his parents challenged the CST's decision.
Following a School Board hearing in April 2000 concerning plaintiff's drug use, he was expelled from the high school, effective August 2000. The School Board agreed to provide homebound instruction for plaintiff until his 16th birthday in August 2000, at which time it would cease to provide him with educational services. Plaintiff apparently received that homebound instruction, and thereafter he obtained his GED degree.
Plaintiff and his parents attempted to challenge his expulsion in administrative proceedings. On June 19, 2000, they petitioned for an emergent relief hearing with the State Department of Education ("the Department"). The Department referred the request to the Office of Administrative Law ("OAL"), where Administrative Law Judge ("ALJ") Jeff S. Masin denied plaintiff's petition for emergent relief.
The following month, ALJ Masin conducted a three-day plenary hearing, after which, on September 19, 2000, he upheld the Board's decision to expel plaintiff. Plaintiff filed timely exceptions to the ALJ's decision with the Commissioner of Education. On November 6, 2000, the Commissioner vacated the expulsion and directed the School Board to conduct a new hearing to determine whether expulsion was appropriate and whether there were available alternatives.
The second hearing in the school district was held on December 6, 2000. On December 13, 2000, the School Board reaffirmed its prior determination that expulsion was indeed the appropriate remedy. Plaintiff again contested the School Board's decision and filed an application for emergent relief, which was denied by ALJ Bruce R. Campbell on February 7, 2001. On February 15, 2001, the Commissioner affirmed ALJ Campbell's decision to deny plaintiff's application for emergent relief.
After another plenary hearing in the OAL, on June 13, 2001, ALJ Campbell upheld the School Board's renewed decision to expel plaintiff. Among other things, ALJ Campbell found credible the school administrators' testimony that their decision was "based on [plaintiff]'s apparent failure to enroll in an intensive drug program as recommended by professional drug counselors after the first positive [drug] test and the apparent absence of any desire on the part of [plaintiff] and his family to work aggressively to combat [his] drug abuse."
Plaintiff appealed to the Commissioner, who affirmed ALJ Campbell's ruling on August 6, 2001. In his decision, the Commissioner agreed with the ALJ that plaintiff had not sustained his burden of proving that his expulsion was arbitrary, capricious or otherwise contrary to law. Despite his uneasiness with respect to the School Board's initial expulsion decision, the Commissioner was ultimately satisfied that the School Board's renewed decision reflected that it had ordered plaintiff's expulsion only as a "last ditch expedient." The Commissioner was persuaded that "less draconian courses of ...