YOU AND ME PRESCHOOL v. NEW JERSEY DEPARTMENT OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

YOU AND ME PRESCHOOL,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

EDUCATION, DIVISION OF

ADMINISTRATION AND FINANCE,

Respondent-Respondent.

________________________________________

November 4, 2013

Argued October 1, 2013 Decided

Before Judges Fisher, Espinosa and O'Connor.

On appeal from the Department of Education, Commissioner of Education, Agency Docket No. 208-7/12.

Vito A. Gagliardi, Jr., argued the cause for appellant (Porzio, Bromberg & Newman, attorneys; Mr. Gagliardi, of counsel and on the brief; Suzanne E. Peters, on the brief).

Beth N. Shore, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Shore, on the brief).

PER CURIAM

Petitioner You & Me Preschool is a private school for students with disabilities (PSSD), located on the grounds of the JFK Medical Center in Edison. Since 1992, petitioner has been providing instruction for autistic children in preschool through the third grade.

Any PSSD which came into existence after August 16, 2004, is required to have a minimum Average Daily Enrollment1 (ADE) of 24 public school placement students in a school year. See N.J.A.C. 6A:23A-18.3(b). Those PSSDs in existence as of August 16, 2004, such as petitioner, are required to have a minimum Average Daily Enrollment of 16 public school placement students in a school year. See N.J.A.C. 6A:23A-18.3(c)1.iii.

During the 2008-2009 school year, the ADE of petitioner fell to 14.3538 students. As the enrollment of the school fell below the minimum ADE required by N.J.A.C. 6A:23A-18.3(c)1.iii, the school's status as an approved PSSD was rescinded and deemed preliminarily approved only. A school which does not attain a minimum ADE of 16 public school placement students by the end of the third school year after being preliminarily approved loses its approval as a PSSD altogether. Ibid.

The ADE of petitioner continued its downward trend over the next three years. The ADE was 11.9810 during the 2009-2010 school year; 11.2720 during the 2010-2011 school year; and 9.8860 during the 2011-2012 school year. At the end of the 2011-2012 school year, petitioner sought a waiver of the minimum ADE requirement from the Acting Commissioner of respondent Department of Education (Department). The Acting Commissioner denied the request for a waiver. Petitioner appealed the decision. We reverse.

A PSSD may apply to the Commissioner of the Department for a waiver of any rule in Title 6 and Title 6A of the New Jersey Administrative Code. See N.J.A.C. 6A:5-1.1 to -7.1. The stated purpose of N.J.A.C. 6A:5-1.1 to -7.1 is to provide regulatory flexibility so that school districts, including private schools for the handicapped, can provide effective and efficient educational programs. N.J.A.C. 6A:5-1.1. The Commissioner has sole discretion to grant or deny a waiver request. N.J.A.C. 6A:5-1.1; N.J.A.C. 6A:5-1.5.

Under N.J.A.C. 6A:5-1.3, a waiver must meet three criteria: (1) that the spirit and intent of New Jersey Statutes Title 18A, New Jersey Administrative Code Title 6 and Title 6A, and applicable Federal laws and regulations be served by granting the waiver; (2) that the providing of a thorough and efficient education will not be compromised as a result of the waiver; and (3) that the waiver will not result in any risk to student health, safety or civil rights. In its brief the Department concedes that the requested waiver would not have interfered with providing a thorough and efficient education to petitioner's students and would not have posed any risk to its students' health, safety or civil rights. The Department does contend that the granting of the waiver would have undermined the spirit and intent of the minimum ADE requirement in N.J.A.C. 6A:23A-18.3(c)1.iii.

On June 11, 2012, petitioner submitted to the Department a completed "Waiver Application N.J.A.C. 6A:5" form prepared and issued by the Department. In response to the question requesting the applicant to "briefly" describe why a waiver is necessary, petitioner stated that the minimum ADE requirement in N.J.A.C. 6A:23A-18.3(c)1.iii was precluding the school from providing its unique instructional program to autistic children. Petitioner also noted that the Pediatric Rehabilitation Department of the JFK Medical Center afforded the school financial, administrative and medical support. Further, in addition to being able to share resources with the Pediatric Rehabilitation Department, the school had the ability to provide to its students "coordinated school nursing and pediatric neurological services," integrated experiences with typical peers, and in-home support.

By letter dated June 29, 2012, the Acting Commissioner advised petitioner that its request, "[t]o continue the operation of a private school for students with disabilities that falls below the minimum average daily enrollment is denied." The Acting Commissioner did not give any reasons for the denial. By letter dated July 9, 2012, the Department advised petitioner that, effective July 1, 2012, the school was no longer considered an approved PSSD.

Petitioner argues that the denial of the waiver was arbitrary, capricious and unreasonable because the Acting Commissioner did not provide any reasons for the denial of the waiver and, further, there was not any basis to deny the waiver request.

Respondent counters that the Acting Commissioner's decision was one made in a proceeding that was legislative in nature, rather than quasi-judicial; therefore, the Acting Commissioner was not required to give reasons supporting his decision. Second, respondent maintains the record supports the decision to deny the waiver request. Petitioner does not contest that the decision made by the Acting Commissioner was a proceeding that was legislative and not judicial in nature.

A decision made by an administrative agency that is legislative in nature is subject to reversal if the decision is arbitrary, capricious or unreasonable; lacked fair support in the evidence; or violated legislative policies express or implied in the relevant statute. East Windsor Reg'l Bd. of Educ. v. State Bd. of Educ., 172 N.J. Super. 547, 552 (App. Div. 1980). Although we have said an administrative agency need not give detailed findings of fact when rendering a decision in a matter that is legislative in nature, an administrative agency must give some explanation for its decision. Ibid.

[A] determination of whether the agency's decision was arbitrary, or not in accord with legislative policy, cannot be made in the absence of a statement of reasons for the decision. This is so because courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review.

[Ibid. (citing In re Plainfield-Union Water Co.,

11 N.J. 382, 396 (1953)).]

If there is not any explanation for a decision, it is acceptable if the reason or reasons for the decision are deducible from the record. In re Grant of Charter School Application of Englewood on Palisades Charter School, 320 N.J. Super. 174, 217 (App. Div. 1999).

As the Acting Commissioner failed to give any reasons for the denial of petitioner s waiver request, we cannot make any determination whether his decision was arbitrary or in accord with legislative policy. A search of the record does not reveal the basis for his decision, either.

In its brief, the Department points out that the Middlesex County Superintendent, the Assistant Commissioner of the Department, and the Director of the State Board Office reviewed the waiver application and recommended that the waiver request be denied. The Department suggests that the reasons given by these officials provide the requisite support in the record for the Acting Commissioner's decision. We disagree. There is no evidence the Acting Commissioner adopted or was even aware of the reasoning for the recommendations made by these officials.

As the Acting Commissioner did not set forth, and an examination of the record does not reveal, the reasons for the denial of the waiver request, we are constrained to reverse the decision of the Acting Commissioner and remand the matter for further findings consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

1 "Average daily enrollment" means the sum of the days of all school students enrolled in the register of the school, divided by the number of days the school was actually in session for the entire school year, rounded to the nearest four decimal places. See N.J.A.C. 6A:23A-18.1.