D.Q. v. STATE OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2948-08T22948-08T2

D.Q., on behalf of

minor child, S.Q.,

Petitioner-Appellant,

v.

STATE OPERATED SCHOOL DISTRICT

OF THE CITY OF NEWARK, ESSEX

COUNTY,

Respondent-Respondent.

____________________________________

 

Argued November 4, 2009 - Decided

Before Judges Wefing and Messano.

On appeal from a Final Decision of

the Commissioner of Education, Agency

Docket No. 131-5/08.

D.Q., appellant, argued the cause pro se.

Arsen Zartarian, Deputy General Counsel,

argued the cause for respondent State Operated

School District of the City of Newark (Lisa

Pollak, General Counsel, attorney; Mr. Zartarian,

on the brief).

Anne Milgram, Attorney General, attorney for

Respondent Commissioner of Education (Jennifer L.

Campbell, Deputy Attorney General, on the

Statement in Lieu of Brief).

PER CURIAM

D.Q. appeals from a Final Decision of the Commissioner of Education. After reviewing the record in light of the contentions advanced on appeal, we affirm.

D.Q. is the mother of S.Q. who attended Mount Vernon School in Newark through June 2006, when he graduated from the sixth grade. Following that graduation, D.Q. was notified that S.Q. could not remain at that school, which went up to the eighth grade, because he did not live in that district; she was supplied with a list of other schools he could attend. D.Q. was unhappy with the schools included on this list and did not believe any would be appropriate for her son. Accordingly, she enrolled S.Q. in a private school.

In May 2008, D.Q. filed a petition with the Commissioner of Education seeking reimbursement for the tuition costs associated with her son's attendance at this private school. The matter was transferred to the Office of Administrative Law as a contested matter. In September 2008, State-Operated School District of the City of Newark moved for summary disposition. The administrative law judge granted this motion, and the Commissioner of Education adopted that decision. This appeal followed.

In her papers, D.Q. sets forth her extensive involvement as a parent volunteer at Mount Vernon School and certain disagreements that arose from her role. She alleges that her son was moved from Mount Vernon School in retaliation for her activities. She contends that all of the schools on the list supplied to her were unsuitable; she alleges that some were not performing up to standards and that others did not even go up to seventh grade, the level her son was entering.

The administrative law judge did not deal with the substance of D.Q.'s contentions. The Commissioner, by adopting the decision of the administrative law judge, did not deal with their substance either. We are satisfied that this approach was, in the context of this matter, correct.

We note first the limited scope of our review of the Commissioner's Final Decision. Such a final administrative decision should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). If the administrative findings "could reasonably have been reached on sufficient credible evidence present in the record, . . . with due regard also to the agency's expertise," they should be affirmed. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

N.J.A.C. 6A:3-1.3(i) provides that a petition such as that filed by D.Q. "shall [be] file[d] . . . no later than the 90th day from the date of receipt of the notice of a final order, ruling or other action" which is being challenged. The administrative law judge and the Commissioner based their decisions on the fact that D.Q.'s petition was untimely by any measure, having been filed nearly two years after she received notification her son would have to attend another school. We agree.

Such limitations periods "provide[] a measure of repose, an essential element in the proper and efficient administration of the school laws." Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 582 (1993) (dismissing as untimely a petition filed two months beyond the ninety-day deadline). Such a rule "gives school districts the security of knowing that administrative decisions regarding the operation of the school cannot be challenged after ninety days." Ibid.

The Court of Appeals for the Third Circuit has held, under a different statute, that parents did not lose their right to seek reimbursement for their tuition costs simply because they placed their son in a private school before they filed a challenge to the adequacy of the Individualized Educational Plan the district prepared for their son. Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 (3d Cir. 1994). Even in that matter, however, the court held that their two-year delay was unreasonable. D.Q.'s two-year delay here is similarly unreasonable in our judgment.

 
The Final Decision of the Commissioner, dismissing D.Q.'s petition as untimely, is affirmed.

(continued)

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2

A-2948-08T2

RECORD IMPOUNDED

January 14, 2010