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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...