April 16, 2012
K.Q. AND L.Q. ON BEHALF OF MINOR CHILD, C.Q., PETITIONERS-APPELLANTS,
BOARD OF EDUCATION OF THE GATEWAY REGIONAL HIGH SCHOOL DISTRICT, GLOUCESTER COUNTY, RESPONDENT-RESPONDENT.
On appeal from the Commissioner of Education.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 7, 2011 -
Before Judges Lihotz and Waugh.
Petitioners K.Q. and L.Q. (parents) brought this appeal on behalf of their minor son, C.Q., to whom we refer by the pseudonym Clement. They appeal from the final administrative agency decision of respondent Commissioner of Education (Commissioner) affirming the decision of respondent Board of Education (Board) of the Gateway Regional High School District (Gateway) to implement Gateway's drug policy after Clement tested positive following a random drug test. We affirm.
We discern the following factual and procedural background from the record on appeal, including the record of the hearing in the Office of Administrative Law (OAL).
In 1997, the Board adopted a policy calling for random drug testing for Gateway students on a biweekly basis.*fn1 The policy applied only to students in grades nine through twelve who participated in athletics or other extracurricular activities, or who possessed an "on-campus parking pass."
Under the policy, Gateway provides a list of names of all students subject to testing to the office of an independent physician. A registered nurse (RN) at the physician's office enters the names into a computer that uses software designed to generate the names of students to be tested on a random basis. The RN uses the program to generate twenty names to be tested, with five additional names as alternates. Those names are then provided to Gateway's principal, who escorts the students to the school nurse's office, where the students are requested to provide a urine sample.
The RN is "present in the [school] nurse's office on testing day and [is] responsible for receiving the [samples], splitting each sample, testing one, and sending a second test to a laboratory." The test results are disclosed only to Gateway's superintendent. Each student's results are locked in a cabinet in the superintendent's office and are destroyed when that student graduates.
If a student tests positive, the policy requires the superintendent to notify and meet with the student's parents. The policy provides that the test results may be challenged through a test of the split sample at an approved testing facility. The policy subjects the student to counseling and loss of some privileges, on a progressive basis, if the student tests positive.
On November 30, 2009, Gateway conducted a random drug test in accordance with its policy. Clement was chosen for testing.*fn2
On December 10, Dr. Shannon Whalen, the superintendent, received the results of the tests. Clement tested positive for drugs.
Pursuant to the policy, Whalen notified Clement's parents of the results and attempted to meet with them. According to Whalen, the parents "refused to have a meeting, on more than one occasion." The parents made a request that the split sample be tested. Whalen believed that she told Clement's mother that they had to contact the physician's office to arrange for the testing, but she was not certain. Neither parent testified at the OAL hearing. However, at the hearing, counsel for the parents conceded that the test result was positive.
In March 2010, the parents filed a petition and then an amended petition with the Commissioner, seeking a declaration that Gateway's policy was invalid because it did not comply with the requirements of N.J.S.A. 18A:40A-22 to -25 or N.J.A.C. 6A:16-4.4(b), one of the regulations adopted by the Commissioner to implement the provisions of N.J.S.A. 18A:40A-24. They also sought a permanent injunction against implementation of the policy, as well as expungement of Clement's record with respect to the result of the November 30 test. After Gateway filed its answer, the Commissioner referred the matter to OAL for hearing as a contested case.
At the hearing before the administrative law judge (ALJ), the parents' counsel stated that "the issues are the compliance of the school with their own policy, and the compliance of the policy for random drug testing with the Law of the State of New Jersey. . . . I believe that limits the scope of inquiry today." Whalen and the superintendent were the only witnesses at the hearing. The parents did not offer any testimony or expert opinion.
In her initial decision, the ALJ concluded that Gateway's policy was "thin, at best, in relation to the first two components" of N.J.A.C. 6A:16-4.4(b)(2) which require the policy to provide "a description of . . . [t]he manner in which students shall be randomly selected . . . [and] [a]n explanation of the sampling statistical principals supporting the random selection process." With regard to the third and fourth factors of N.J.A.C. 6A:16-4.4(b)(2), which require an "explanation of how implementation of the random selection process shall be documented . . . [and] verified," the ALJ found that "the policy is silent on methods to be used to ensure documenting and verifying the random-selection procedure." In making that finding, the ALJ relied on the fact that "[t]he policy contains no indication of how the accuracy of the basic list is determined. . . . The policy contains no indication of what steps [Gateway] has taken to verify that the list is transferring [into the randomizing software] properly, or whether [Gateway] has a process for making sure that the software is operating properly."
The ALJ also found that the policy did not meet the requirements of N.J.A.C. 6A:16.4-4(b)(9), which requires the policy to include "the procedures for students or their parents to challenge a positive result." The ALJ observed that, although the policy stated a student could challenge the result by testing the split sample, the policy did not "include the critical information that in order to do so, the parent or student must contact the physician's office to make the necessary arrangements."
Because she concluded that Gateway's policy did not comply with the requirements of N.J.S.A. 18A:40A-24 or its implementing regulations, the ALJ found that Gateway's action in applying the policy to Clement was arbitrary, capricious, and unreasonable. She ordered Gateway to expunge the results of Clement's test. The ALJ did not address the continued implementation of the policy.
The Board filed exceptions to the ALJ's initial decision with the Commissioner, asking him to reject the requirement that Clement's records be expunged and instead to order it to revise the policy to comply with the statute and regulations. The parents urged the Commissioner to adopt the ALJ's initial decision.
The Commissioner rejected portions of the ALJ's initial decision. He explained his reasoning as follows:
After consideration and review, the commissioner finds that the drug policy did not violate N.J.S.A. 18A:40A-24(d) - which requires drug testing policies to contain a procedure for challenging positive drug test results - and, although the policy did not fully comply with the provisions outlined in N.J.A.C. 6A:16-4.4, the Board did not act in an arbitrary, capricious or unreasonable manner in imposing discipline upon [Clement] for failing the random drug test.
The drug policy contains a provision that allows for pupil or parent/guardian grievances. The applicable provision states, "[a] pupil or parent/guardian who contests a positive result on a random drug test may utilize the district's internal grievance procedure as referenced in [the] Policy . . . in accordance with N.J.S.A. 18A:11-1." Additionally, the drug policy states that a split urine sample will be taken for all tested students, and if a student or parent/guardian chooses to challenge a positive result they have the option of sending the split sample to an approved testing facility. Therefore, the Commissioner finds that the drug policy was in compliance with N.J.S.A. 18A:40A-24(d) because it did contain a mechanism for challenging a positive test result. With respect to the provision contained in N.J.A.C. 6A:16-4.4, the Commissioner is in accord with the ALJ's finding that the drug policy should have provided more information regarding the manner in which the eligible student information was generated and provided to the physician's office and the methods used to verify and document the random selection procedure.
Notwithstanding that the drug policy itself lacked certain regulatory details envisioned by N.J.A.C. 6A:16-4.4, the Commissioner cannot find that it has been demonstrated on this record that the Board's handling of this case was arbitrary, capricious or unreasonable, necessitating the expungement of [Clement]'s failed drug test. When a local school board acts within its discretionary authority, its decision is entitled to a presumption of correctness and will not be upset unless there is an affirmative showing that the decision was arbitrary, capricious or unreasonable. Thomas v. Bd. of Ed. of Morris Twp., 89 N.J. Super. 327, 332 (App. Div. 1965), aff'd, 46 N.J. 581 (1966). Here, the petitioners were aware of the drug testing policy and that [Clement] would be subject to random testing; the method by which [Clement] was randomly selected was not challenged by the petitioners; and the petitioners stipulated at the hearing that [Clement] failed the drug test. Moreover, the failed drug test result is not a part of [Clement]'s disciplinary record, and any potential ramification for [Clement] at this juncture will only be triggered if [Clement] fails another random drug test. If [Clement] were to fail another random drug test, it would be considered a second infraction, resulting in a longer suspension from extracurricular activities and more substance awareness counseling and education. The drug policy is not simply a means to discipline students but also a valuable method by which to identify students with drug problems and provide them with the support and resources they may need. The overall intent of the drug testing legislation is to ensure the health and safety of students by recognizing and addressing the seriousness of substance abuse among school-aged children. An order expunging the failed drug test result in the absence of any evidence questioning the validity of the result or testing method would be putting form over substance, to the detriment of [Clement]'s well-being. [(Footnotes omitted.)]
The Commissioner ordered the Board to correct its policy and rejected the ALJ's initial decision calling for expungement. This appeal followed.
On appeal, the parents argue that the Commissioner's decision was erroneous because the ALJ had correctly concluded that the Board's policy was not compliant with the statute or implementing regulations. The parents also argue that application of the Board's flawed policy to Clement violated his rights under Article I, Paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution.*fn3 Finally, they argue that the Commissioner's decision was not supported by substantial credible evidence, and was otherwise arbitrary, capricious, and unreasonable.
The scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007) (citing Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006)). We accord an agency's exercise of its statutorily delegated responsibilities a strong presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008) (citations omitted). See also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009) (citations omitted).
The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).
Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973), if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)).
New Jersey allows, but does not require, its school districts to adopt a policy of "random drug testing of students participating in extracurricular activities, including interscholastic athletics, and students who possess school parking permits." N.J.S.A. 18A:40A-22.
N.J.S.A. 18A:40A-24, which sets forth the requirements for a school district's random drug testing policy, requires the following:
The policy shall be in written form and shall be distributed to students and their parents or guardians at the beginning of each school year. The policy shall include, but need not be limited to, the following:
a. notice that the consent of the student and his parent or guardian for random student drug testing is required for the student to participate in extracurricular activities and to possess a school parking permit;
b. the procedures for collecting and testing specimens;
c. the manner in which students shall be randomly selected for drug testing;
d. the procedures for a student or his parent or guardian to challenge a positive test result;
e. the standards for ensuring the confidentiality of test results;
f. the specific disciplinary action to be imposed upon a student who tests positive for drug use or refuses to consent to testing;
g. the guidelines for the referral of a student who tests positive for drug use to drug counseling or rehabilitative treatment; and
h. the scope of authorized disclosure of test results. [(Emphasis added.)]
The highlighted sections are the provisions most relevant to this appeal.
As required by N.J.S.A. 18A:40A-25, the State Board of Education adopted regulations to implement the law passed by the Legislature. N.J.A.C. 6A:16-4.4(b) sets forth additional specific requirements for a school board's "written" policy. The sections of subsection 4.4(b) at issue in this case provide the following:
2. A description of the procedures for randomly selecting students for alcohol or other drug testing, which, at a minimum, shall include:
i. The manner in which students shall be randomly selected for alcohol or other drug testing;
ii. An explanation of the sampling statistical principles supporting the random selection process;
iii. An explanation of how implementation of the random selection process shall be documented; and
iv. An explanation of how implementation of the random selection process shall be verified;
9. The procedures for students or their parents to challenge a positive result from the alcohol or other drug tests[.]
With respect to the requirements of subsection 4.4(b)(2), Gateway's policy provided as follows:
On a biweekly basis, a maximum of twenty (20) of the eligible students that sign up for an athletic team/activity/club/parking shall be tested for illegal drug use. The contractor appointed by the Board of Education shall conduct testing. Those selected for testing shall be immediately notified and tested the same day. Students will be given a letter to notify their parent/guardian each time they are tested. Any eligible student who refuses to be tested, deliberately avoids testing or alters their specimen will be immediately dropped from the team/activity/parking as he/she is in violation of the consent agreement signed prior to the season/activity/parking. Selection and testing shall be done on a biweekly basis. The contractor conducting the random selection, and all testing, shall adhere strictly to all Federal and State standards. A description of the random selection software methodology and procedure is on file in the district office. [(Emphasis added.)]
The document referred to at the end of the quoted passage was an exhibit at the OAL hearing, but is not included in the record. The ALJ described it as follows:
Superintendent [Whalen] testified without contradiction that the description of the random-selection software is a document entitled "How the Randomizer Works- Methodology." . . . The document incorporates the Microsoft Office explanation of the four-step process involved in its Randomizer product, plus some general explanation of the mathematics involved, along with information on lawsuits in drug-testing programs, provided next to the insignia of the Drug and Alcohol Testing Industry Association.
[Whalen] stated that the "How the Randomizer Works-Methodology" document is retained in her office, and although she cannot personally recall a situation where someone has requested the document over the phone, she believes it has occurred in the past, and that the District has forwarded a copy in the mail. She acknowledged that the document is physically part of District Policy 5366.
In her legal analysis, the ALJ noted that "no evidence of less-than-random selection was offered" at the hearing.
The policy contained the following provision regarding testing of the split sample, which is governed by subsection 4.4(b)(9): If a student or parent/guardian chooses to challenge a positive result the student or parent/guardian shall have the option to send a split sample to an approved testing facility of his/her choosing, utilizing the same screening parameters and levels identified in this policy, at his/her expense. Consideration will be given to the results of tests run by the student's facility of choice. Additional testing may be deemed necessary by the administration. The results of the split specimen are the final results.
As presented during the OAL hearing, the parents case was that the policy lacked the detailed information required by the statute and regulations, not that Clement's selection was not random or not that his urine sample was not positive for drugs. They never argued that they wanted to test the randomness of his selection or analysis of the split sample but were unable to do so because of the lack of the information that should have been contained in the text of the policy. There was no allegation that District employees refused a request for access to the "description of the random selection software methodology and procedure" mentioned in the policy, or that it was even requested. Whalen's testimony that she recalled advising Clement's mother how to arrange for testing of the split sample was not refuted at trial.
We agree that the Board's policy was flawed to the extent it did not provide the level of specificity required by the regulations. Nevertheless, we also agree with the Commissioner's determination that the policy was not violative of the statute, which was more narrowly drawn than the regulations.
N.J.S.A. 18A:40A-24(c) requires the policy to provide "the manner in which students shall be randomly selected for drug testing," whereas N.J.A.C. 6A:16-4.4(b)(2) requires additional information, including "[a]n explanation of the sampling statistical principles supporting the random selection process"; "[a]n explanation of how implementation of the random selection process shall be documented"; and "[a]n explanation of how implementation of the random selection process shall be verified." The Board's policy provided a basic outline of the procedure and alerted students, and their parents and guardians, how they could obtain more detailed information.
With respect to N.J.S.A. 18A:40A-24(d) and N.J.A.C. 6A:16-4.4(b)(2), the procedures for challenging a positive test result, the policy alerted students, and their parents or guardians, that they have the right to have the split sample tested. Whalen confirmed that the specific procedure would be explained to parents seeking independent testing, and that she believed she provided that information to Clement's mother.
Based upon the above, we conclude that Clement and his parents were in no way prejudiced by the policy's admitted lack of specificity. Because we determine (1) that the policy was compliant with the statute and (2) that the results have not been brought into question, we find that application of the policy to Clement was not arbitrary, unreasonable, or capricious. Substantively, the facts in the record, which were not challenged at the OAL hearing, support the determination that Clement's urine sample reflected use of illegal drugs.
In Joye v. Hunterdon Central Regional High School Board of Education, 176 N.J. 568 (2003), the Supreme Court upheld the constitutionality of random drug testing in schools under both the New Jersey and United States Constitutions. The Court's concerns in that case centered on those aspects of the issue that involved a warrantless search and an invasion of personal privacy. It concluded that students have "a diminished expectation of privacy," id. at 590, that schools have "a special need" justifying relaxation of the normal requirement of individualized suspicion, id. at 595, that the procedures for obtaining the urine samples met concerns about personal privacy, id. at 598-99, and that the program was "reasonably tailored" to meet the "scope and nature" of the problem of drug use by students. Id. at 603-04.
None of those concerns are implicated in this case. In addition, Clement and his parents were accorded the opportunity to challenge the results of the drug test on the merits, but they chose not to do so. They were in no way deprived of due process. Consequently, we find no merit to their constitutional argument.