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Milford Borough Board of Education v. Christopher D. Cerf

December 12, 2012


On appeal from the Department of Education, State of New Jersey.

Per curiam.


Argued October 17, 2012 -

Before Judges Grall and Simonelli.

This appeal concerns the Commissioner of Education's administration of N.J.S.A. 18A:36B-21, a provision of the Interdistrict Public School Choice Program Act (the Act), N.J.S.A. 18A:36B-14 to -24. The focus is on a statute that allows a board of education to adopt a resolution, subject to approval by the Commissioner, limiting the percentage of its students that may enroll in a choice district. N.J.S.A. 18A:36B-21(a)(1).

The questions presented are whether the Commissioner has the authority to condition approval of a school board's restricting resolution on the board's submission of evidence supporting it and, if so, whether the Commissioner may deny approval for lack of evidential support without giving prior notice of the obligation to submit supporting evidence. We conclude that the Commissioner has the authority to require the information but not without giving prior notice of the obligation.



The Act was approved on September 9, 2010, and took effect immediately. L. 2010, c. 65, §§ 1-13. At that point in time, an interdistrict public school choice program had been under consideration and development for years, and a limited choice program had been in place since 1999. From its inception, the purpose of the choice program has been to improve educational opportunities by increasing options for parents and students in selecting a school which best meets the students' needs, improving achievement and efficiency through voluntary redistribution of students and healthy competition among school districts. N.J.A.C. 6A:12-1.1; see also 30 N.J.R. 1485(a) (May 4, 1998); 31 N.J.R. 1664(a) (July 6, 1999); 44 N.J.R. 2085(a) (Aug. 20, 2012). The program was authorized in furtherance of the Legislature's constitutional obligation to "provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years." N.J. Const. art. VIII, § 4, ¶ 1.

The Legislature impliedly authorized the Commissioner to establish choice districts in the "Comprehensive Educational Improvement and Financing Act of 1996," L. 1996, c. 138.*fn1 Acting on that authorization, the State Board of Education proposed regulations establishing an interdistrict choice program in April 1998. Following a series of public hearings, modifications and re-proposals, the State Board adopted regulations establishing an interdistrict public school choice program of limited scope in September 1999. See 31 N.J.R. 1664(a) (July 6, 1999) (discussing the process).

In January 2000, the Governor signed legislation directing the Commissioner to proceed with a choice program consisting of no more than ten choice districts statewide in the first year, no more than fifteen in the second year, and no more than twenty-one in the third, fourth and fifth years. L. 1999, c. 413, § 3 (codified as N.J.S.A. 18A:36B-3 until repealed by section 12 of this Act).*fn2 The 1999 law required the Commissioner to annually report to the State Board and the Legislature on the effectiveness of the program, and it required the Legislature's Joint Committee on Public Schools to commission an independent study of the first two years of operation. L. 1999, c. 413, § 10 (N.J.S.A. 18A:36B-11). Despite the legislative oversight, the 1999 law provided for continuation of the limited program unless the Legislature acted to rescind it. Ibid. Thus, the limited program continued for more than five years.

This Act, effective September 9, 2010, repeals the limited interdistrict school choice program authorized by the 1999 law and replaces it with a substantially similar program that does limit the number of choice districts the Commissioner may establish. N.J.S.A. 18A:36B-14 to -24 (L. 2010, c. 65, §§ 1-13).*fn3 Without limitation, it directs the Commissioner to implement a choice program through "the creation of choice districts." N.J.S.A. 18A:36B-16; cf. L. 1999, c. 413, § 3 (N.J.S.A. 18A:36B-3) (providing for a gradual increase in choice districts from ten to twenty-one). Despite this broad grant of authority, the Act continues the Commissioner's obligation to provide annual reports on the effectiveness of the choice program to the State Board of Education, the Legislature and its Joint Committee on Public Schools. N.J.S.A. 18A:36B-24.

A "choice district" is a district authorized to open one or more schools to students residing in sending districts.

N.J.S.A. 18A:36B-15. A "sending district" is the district in which a choice student resides. Ibid.

Several provisions of the Act address the impact on sending districts. For example, a district seeking authorization to operate as a choice district must apply to the Commissioner to obtain authorization and obtain the approval of the State Board of Education. N.J.S.A. 18A:36B-17. A district applying for such authorization must provide "an analysis of the potential impact of the program on student population diversity" in its district and "all potential participating districts." Ibid. In approving a choice district, the Commissioner must consider its impact on diversity in the choice district, the fiscal impact on the district, the quality and variety of the proposed academic programs, and the procedures and standards for its admission of choice students. N.J.S.A. 18A:36B-18(a) to (d). But the Commissioner cannot ignore the impact on the sending district; he must consider "the degree to which the program will promote or reduce educational quality in the choice district and the sending districts." N.J.S.A. 18A:36B-18(e).

Other provisions of the Act reflect concern for the sending district's need to plan for its students. For example, a sending district must be notified when one of its students applies to enroll in a choice district and when one of its students is accepted. N.J.S.A. 18A:36B-20(a), (g).

The provision of the Act at issue here also recognizes the interests of sending districts and the students who will not participate in the choice program. N.J.S.A. 18A:36B-21 gives a sending district authority to adopt a resolution restricting the number of its students participating in a choice district.

The sending district's authority to limit participation in choice districts is not absolute, however. N.J.S.A. 18A:36B-21 limits the scope of the permissible restriction to a maximum percentage of the sending district's students, and it requires the sending district to obtain the Commissioner's approval. In pertinent part, N.J.S.A. 18A:36B-21 provides:

a. (1) The school board of a sending district may adopt a resolution to restrict enrollment of its students in a choice district to a maximum of 10% of the number of students per grade level per year limited by any resolution adopted pursuant to this paragraph and 15% of the total number of students enrolled in the sending ...

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