On appeal from the Department of Education, Docket No. 225-9/09.
The opinion of the court was delivered by: Fuentes, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Koblitz and Haas.
The opinion of the court was delivered by FUENTES, P.J.A.D.
This appeal presents a facial challenge to the validity of a regulation promulgated by the Board of Education of the Ramapo Indian Hills Regional High School District (Board) that seeks to control student conduct not only at school or during school-related functions and activities, but at all other times and places. Regulation 6145, entitled "Extracurricular Activities," asserts this control by conditioning student participation in extracurricular activities on compliance with a specifically enumerated code of student conduct. Among the behaviors that may result in suspension from extracurricular activities is a student's arrest for an alleged violation of a criminal statute or municipal ordinance. The regulation does not require a nexus between the alleged violation of law and school order or safety.
Petitioners G.D.M. and T.A.M. brought this action on behalf of themselves and their minor daughter B.M.M., arguing that Regulation 6145 violates State Department of Education regulations and constitutes an unconstitutional infringement of their right to privacy, as well as their daughter's right against self-incrimination and to a thorough and efficient education under Article VIII, section 4, paragraph 1, of the New Jersey Constitution. The then Acting Commissioner of Education (Commissioner) found that Regulation 6145 exceeded the authority conferred upon local school boards to regulate student conduct under N.J.A.C. 6A:16-7.1 and N.J.A.C. 6A:16-7.6. The Commissioner thus invalidated Regulation 6145 and directed the Board to revise its student disciplinary policy to comply with the prevailing state regulatory scheme.*fn1
On appeal to this court, the Board argues that the Commissioner misconstrued State Board Education regulations because the only sanction imposed for a violation of Regulation 6145 is the loss of a privilege, which enjoys no special protection under the law. Petitioners cross-appeal, arguing that the Commissioner should have considered and decided their constitutional claims. We subsequently granted the motions of the American Civil Liberties Union of New Jersey (ACLU), the Haddonfield Board of Education (HBE), the New Jersey Association of School Administrators (NJASA), and the New Jersey School Boards Association (NJSBA) to appear as amici curiae in this matter.
After considering the record developed before the Commissioner, and mindful of the prevailing standard of review, we affirm. Regulation 6145 is facially overbroad and exceeds the authority conferred upon boards of education by state statutes and regulations. Because petitioners prevailed in their legal challenge on these grounds, we decline to consider the alternative constitutional bases for invalidating Regulation 6145 advanced by petitioners in their cross-appeal.
Commencing in 2007, the Board proposed a regulation granting the school district the authority to "revoke a student's privilege to participate in extracurricular activities based upon illegal conduct. . . ." The Board was particularly concerned with the consumption, possession, and distribution of illicit drugs and alcohol by students "occurring outside of school property." Responding in part to "a number of incidents in which . . . students had engaged in dangerous and illegal drugs and alcohol related behaviors," the Board conducted "numerous public hearings between 2007 and 2009" to solicit input from the community.
In a certification submitted in this case, Lauren Schoen, the Superintendent of Schools for the Ramapo Indian Hills Regional High School District, averred that "the vast majority of involved students, parents, educators and extracurricular activity coaches, advisors, coordinators and participants" responded to the Board's outreach efforts during this two-year period, and the proposed regulation "received community-wide support[.]"*fn2
The Board adopted Regulation 6145 at a regular meeting held on June 22, 2009. Entitled "Extracurricular Activities," Regulation 6145 provides in pertinent part:
Participation in Board-sponsored extracurricular activities is a privilege enjoyed only by students in good academic and disciplinary standing. This privilege is earned through compliance with all applicable rules and regulations. This policy is intended to be a positive statement in support of our students as they strive to remain free of all drugs and alcohol as required by state law. This policy also encourages a student to maintain good attendance and grades, abide by all school rules, and to be a good citizen. The Board has the authority to restrict or revoke a student's privilege to participate in extracurricular activities.
The consequences set forth in this Policy and Regulation relate solely to limiting the opportunity of any student found to be in violation of this Policy or Regulation to participate in Board-sponsored extracurricular activities.
1. General Behavioral Expectations:
a. Students are expected to comply with all of the Board's policies and regulations at all times . . . .
b. Students are required to conform to reasonable standards of acceptable behavior, to respect the rights, person and property of others, to preserve the degree of order necessary for the conduct of the educational program, and to obey those in authority.
c. Students shall not engage in activities that constitute criminal offenses or juvenile delinquency as defined by law.
2. Use of Alcoholic Beverages and/or Drugs:
a. Expectations: All student participants in Board-sponsored extracurricular activities must refrain from the use, possession or distribution of any alcoholic beverage or other drugs (unless prescribed by a physician) both on and off school grounds, during the season or activity in which the student wishes to participate in the extracurricular activity.
Consequences for Violations of Conduct Requirements:
1. Alleged violations of the above behavioral expectations occurring on school grounds and/or at school sponsored events will be reported by [a] supervising staff member to the building administrator. With respect to conduct occurring away from school grounds/events, an alleged violation of the above conduct requirements shall occur if a student is formally charged and/or arrested by law enforcement for an alleged violation of the New Jersey Code of Criminal Justice, and/or applicable municipal codes or ordinance provisions.
2. Following notification of a student's alleged violation, the building administrator shall conduct a conference with the student and his/her parents, which shall include the student assistance counselor ("SAC") and other district personnel, as appropriate, at which time the student shall be provided the opportunity to address the alleged violation.
3. At the conclusion of the conference, the administrative personnel shall determine whether or not a violation of this ...