NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5351-14T3
CAROL GRAVES, LEAH ZALANNA
OWENS, DEBORAH SMITH-GREGORY,
JOSE LEONARDO, KRISTIN
TOWKANIUK, RAMON MELENDEZ, JR.,
HECTOR MALDONADO, CHANTELL MONCUR,
LINDA KELLY GAMBLE, NANCY J.
GIANNI, PENNY MATEE, CHRISTINE
CUNNINGHAM, JUDY JONES, CYNTHIA
WADE, JUDY GAINES-SLOAN, GAIL
AUSBY, CHRISTINA IKWUEGBU,
FRANCISCA OSUJI, DEIDRE CORLEY,
GEORGE TILLMAN, JR., TAMARA MOORE,
OMAYRA MOLINA, LOUCIOUS JONES,
JENISE REEDUS, and VERONICA BRANCH[1],
Petitioners-Appellants,
v.
STATE OPERATED SCHOOL DISTRICT OF
THE CITY OF NEWARK and CAMI ANDERSON,
STATE SUPERINTENDENT OF SCHOOLS,
Respondents-Respondents.
__________________________________________
Argued September 12, 2017 – Decided September 26, 2017
Before Judges Yannotti, Carroll and Mawla.
1
We note that Veronica Branch was not listed in the caption, but
she was identified as a party in the petition. Therefore, we have
added her to the list of petitioners.
On appeal from the Commissioner of Education,
Docket No. 225-8/14.
Robert T. Pickett argued the cause for
appellants (Pickett & Craig, attorneys; Mr.
Pickett, of counsel and on the briefs; Lauren
M. Craig, on the briefs).
Daniel Schlein argued the cause for
respondents (Adams Gutierrez & Lattiboudere,
LLC, attorneys; Perry L. Lattiboudere, of
counsel and on the brief; Mr. Schlein, on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Commissioner of
Education (Jennifer Hoff, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
On August 18, 2014, petitioners filed an administrative
complaint challenging the implementation of the "One Newark Plan"
by the State Operated School District for the City of Newark
(SOSD).2 They also alleged that the Newark public schools are
unconstitutionally segregated on the basis of race, color,
ancestry, and national origin. Petitioners appeal from a final
decision of the New Jersey Commissioner of Education
(Commissioner) dismissing the petition. We affirm.
2
In 1995, the State Board of Education (State Board) authorized
the removal of the Newark Board of Education and the creation of
the SOSD. Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106,
113-14 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996). On
September 13, 2017, the State Board voted to begin the process for
returning the Newark schools to local control.
2 A-5351-14T3
I.
Petitioners include three individuals who are residents and
taxpayers of Newark; four students who were attending Newark public
high schools when the petition was filed; twelve individuals who
were employed as teachers in Newark's school district at that
time; and six parents with children who were then attending the
Newark public schools. Petitioners named the SOSD and Cami
Anderson, who was then superintendent of the SOSD, as respondents.
In their administrative action, petitioners challenged the
implementation of the "One Newark Plan," which petitioners claimed
had been developed behind closed doors and involved the district-
wide restructuring of Newark's public schools. Among other things,
the plan provided for the closure of certain neighborhood schools
and the leasing of the vacant school facilities to organizations
for the operation of charter schools.
In count two, petitioners allege that the plan violates the
rights of Newark students to a thorough and efficient education,
as guaranteed by the New Jersey Constitution. N.J. Const. art.
VIII, § IV, ¶ 1. Petitioners allege that the plan would have a
disproportionate impact upon the district's African-American and
Hispanic students, as well as severely disadvantaged children in
Newark. Petitioners claim that replacing public schools with
3 A-5351-14T3
charter schools would leave Newark's "neediest" students to
languish in schools that are failing or less successful.
In count three, petitioners claim that the "One Newark Plan"
violates the Charter School Program Act of 1995 (CSPA), N.J.S.A.
18A:36A-1 to -18. Petitioners allege that under the plan, public
schools would be converted to charter schools without compliance
with N.J.S.A. 18A:36A-4(b). The statute permits a currently
existing public school to become a charter school if at least
fifty-one percent of the teaching staff and fifty-one percent of
parents or guardians of pupils attending the school sign a petition
supporting the conversion. Ibid. Petitioners allege that the SOSD
was engaging in the "stealth conversion" of existing public schools
by closing the schools and thereafter leasing the closed school
buildings to organizations for the operation of charter schools.
In count three, petitioners further allege that the plan
violates the CSPA because it allows the SOSD to make final
decisions as to the students who will be permitted to enroll in
charter schools on the basis of a "sophisticated mathematic
equation/algorithm." According to petitioners, such a student-
selection process violates N.J.S.A. 18A:36-7 and N.J.S.A. 18A:36-
8, which govern the charter-school enrollment process.
In addition, in count four, petitioners allege the plan "falls
short of eradicating the corrosive segregated environment that
4 A-5351-14T3
pervades" the district. Petitioners assert that fifty-one percent
of the students enrolled in the Newark public schools are African-
American; forty percent are of Hispanic origin; and about eight
percent are non-Hispanic whites. Petitioners claim that children
who attend racially-segregated schools receive an education that
is inferior to the education of children enrolled in predominantly-
white suburban school districts in Essex County.
Petitioners assert that the alleged de facto racial
segregation of the Newark schools violates the thorough and
efficient clause of the State's Constitution, N.J. Const. art.
VIII, § 4, ¶ 1, and the provision of the State Constitution that
bars segregation of schools on the basis of race, color, ancestry,
and national origin, N.J. Const. art. I, § 5.
In their request for relief, petitioners sought: an
injunction enjoining the SOSD from further implementation of the
"One Newark Plan"; to terminate all contracts with charter-school
organizations that assume control of closed public school
facilities; a declaration that the concentration of African-
American and Hispanic children in the Newark school district is
the result of de facto segregation, in violation of the New Jersey
Constitution; establishment of a plan to eliminate the alleged
unconstitutional de facto segregation of the Newark schools by
creating a county-wide or region-wide school district, which would
5 A-5351-14T3
include the predominantly white Essex County suburban school
districts; and other relief.
When they filed their petition, petitioners also filed an
application for emergent relief. The Commissioner referred the
matter to the Office of Administrative Law for proceedings before
an Administrative Law Judge (ALJ). Petitioners later withdrew
their request for emergent relief. In September 2014, the ALJ
conducted a case management conference and expressed her concern
that petitioners had not named certain indispensable parties,
including the Commissioner and the State Board.
Thereafter, petitioners filed a motion to amend the petition
to add the Commissioner and the State Board as respondents.
However, in October 2014, petitioners withdrew that motion and
elected to proceed only against the respondents named in the
petition. Thereafter, respondents filed a motion to dismiss the
petition on various grounds, and petitioners opposed the motion.
In January 2015, the ALJ heard oral argument on the motion.
On April 28, 2015, the ALJ filed an initial decision granting
the motion and dismissing the petition in its entirety. On June
15, 2015, the Commissioner issued a final decision dismissing the
petition for the reasons stated by the ALJ. This appeal followed.
On appeal, petitioners argue: (1) the ALJ and the Commissioner
failed to review the motion to dismiss in accordance with the
6 A-5351-14T3
established standard of review; (2) the ALJ erroneously found that
the claims in counts two and three of the petition had not been
timely filed; (3) they have standing to assert the claims in the
petition; (4) the "One Newark Plan" violates the constitutional
right of Newark students to a "thorough and efficient" education;
(5) the "One Newark Plan" violates the CSPA; and (6) they were not
required to join the Commissioner, State Board, or the
predominantly-white Essex County suburban school districts as
indispensable parties with regard to the claim of de facto
segregation of the Newark public schools.
II.
We first consider petitioners' contention that the ALJ and
Commissioner failed to consider respondents' motion to dismiss
under the appropriate standard of review. Petitioners argue that
the applicable standard is either the standard for a motion for
involuntary dismissal of civil actions under Rule 4:37-2(b), or a
motion for summary decision in administrative actions under
N.J.A.C. 1:1-12.5(b). We disagree.
Here, respondents filed a motion to dismiss under N.J.A.C.
6A:3-1.5(g), which allows a party to file a motion to dismiss a
petition in a dispute arising under the school laws in lieu of
filing an answer. The motion is comparable to a motion under Rule
7 A-5351-14T3
4:6-2(e) to dismiss a complaint in a civil action for failure to
state a claim upon which relief can be granted.
When reviewing a Rule 4:6-2(e) motion, a court must determine
the adequacy of the pleading and decide whether a cause of action
is "suggested" by the facts. Printing Mart-Morristown v. Sharp
Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v.
Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). The court must
"search[] the complaint in depth and with liberality to ascertain
whether the fundament of a cause of action may be gleaned even
from an obscure statement of claim, opportunity being given to
amend if necessary." Ibid. (quoting Di Cristofaro v. Laurel Grove
Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).
In ruling on the motion, the ALJ correctly applied the
standard for dismissal based on the failure to state a claim in
determining: (1) whether petitioners had standing to assert the
claims in the complaint; (2) whether petitioners filed the claims
in counts two and three within the time required; (3) whether
petitioners stated a valid claim that the "One Newark Plan"
violates N.J.S.A. 18A:36A-4(b); and (4) whether petitioners failed
to name indispensable parties with regard to their claim that the
plan violated the enrollment mandates for charter schools in the
CSPA and the claim of de facto segregation of the Newark schools
on the basis of race, color, ancestry, or national origin.
8 A-5351-14T3
We reject petitioners' contention that the ALJ should have
applied the standards set forth in Rule 4:37-2(b) when ruling on
respondents' motion to dismiss. The court rule applies at trial
in civil actions after the plaintiff has presented its evidence.
Ibid. The rule allows the court to dismiss the complaint if, based
upon a review of the facts and the law, "the plaintiff has shown
no right to relief." Ibid. The standard for granting such a motion
does not apply to a motion to dismiss a petition filed with the
Commissioner under N.J.A.C. 6A:3-1.5(g).
We also reject petitioners' contention that respondents'
motion to dismiss was essentially a motion for summary decision
of an administrative action under N.J.A.C. 1:1-12.5(b).
Petitioners argue that under that rule, summary decision may not
be granted if there are genuine issues of material fact.
The summary decision rule does not, however, apply here.
Respondents did not seek summary decision. They sought dismissal
of the petition under N.J.A.C. 6A:3-1.5(g). As we have explained,
the motion was the administrative equivalent to a motion to dismiss
a civil action under Rule 4:6-2(e) for failure to state a claim
upon which relief can be granted.
We therefore conclude that the ALJ and Commissioner applied
the correct standard in ruling on respondents' motion to dismiss.
9 A-5351-14T3
III.
We next consider petitioners' argument that the ALJ erred by
finding that the claims regarding the "One Newark Plan" in counts
two and three of the petition were not filed within the time
required by N.J.A.C. 6A:3-1.3(i). The rule provides that a petition
of appeal to the Commissioner in a dispute arising under the school
laws must be filed "no later than the 90th day from the date of
receipt of the notice of a final order, ruling, or other action
by the district board of education[.]" Ibid.
In her decision, the ALJ noted that counts two and three of
the petition challenged the SOSD's implementation of the "One
Newark Plan." The ALJ observed that the SOSD had announced on
November 21, 2013, that it would be implementing the plan and the
SOSD described the plan in detail. Moreover, on December 18, 2013,
the SOSD publicly announced specifics of the plan. In addition,
in February 2014, the SOSD issued a pamphlet, which again discussed
details of the plan that would be implemented.
The ALJ and the Commissioner determined that at a minimum,
petitioners should have filed the claims in counts two and three
within ninety days after the SOSD issued the pamphlet about the
plan in February 2014. The record supports that determination.
It is well established that the ninety-day-limitation period
"provides a measure of repose" and it is "an essential element in
10 A-5351-14T3
the proper and efficient administration of the school laws." Kaprow
v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 582 (1993). "The
limitation period gives school districts the security of knowing
that administrative decisions regarding the operation of the
school cannot be challenged after ninety days." Ibid.
We conclude that the ALJ and Commissioner correctly found
that petitioners failed to assert their claims regarding
implementation of the "One Newark Plan" within the time required
by N.J.A.C. 6A:3-1.3(i). Therefore, the dismissal of the claims
in counts two and three of the petition was proper.
IV.
Petitioners argue that the ALJ and Commissioner erred by
dismissing the claims that the plan violated the CSPA. We disagree.
A. Closing of Schools/Leasing of Space for Charter Schools
Here, petitioners allege that the plan allowed for the
"stealth conversion" of public schools without complying with
N.J.S.A. 18A:36A-4(b). The statute provides in pertinent part that
a district may convert a "currently existing public school" to a
charter school if fifty-one percent of the school's teachers and
fifty-one percent of the parents or guardians of students attending
the school sign petitions approving the change. Ibid.
Petitioners allege that under the "One Newark Plan," the SOSD
was closing certain public schools and then leasing the vacant
11 A-5351-14T3
space in those schools to organizations that would use the space
to operate charter schools. Petitioners maintain that this
provision of the plan represents an impermissible end-run around
the process in the CSPA for converting existing public schools to
charter schools.
However, as the ALJ and Commissioner recognized, a school
district has the discretion to close a school that the district
no longer requires for the education of students. Furthermore, the
SOSD also has statutory authority to lease vacant space in school
buildings to other persons or organizations. N.J.S.A. 18A:20-8.2.
The ALJ and the Commissioner correctly found that because the SOSD
was not converting a "currently existing public school" to a
charter school, N.J.S.A. 18A:36A-4(b) did not apply.
We will not set aside an administrative decision if it is
consistent with the applicable law, supported by sufficient
credible evidence in the record, and not arbitrary, capricious,
or unreasonable. Saccone v. Bd. of Trs. of Police & Firemen's Ret.
Sys., 219 N.J. 369, 380 (2014). The ALJ and the Commissioner's
determination that the SOSD was not engaged in the conversion of
currently existing public schools to charter schools is consistent
with the plain language of the statute and supported by sufficient
credible evidence in the record. The decision is not arbitrary,
capricious, or unreasonable.
12 A-5351-14T3
B. Enrollment Plan for Charter Schools
Petitioners also claim that the "One Newark Plan" violated
the CSPA because it includes an enrollment process for charter
schools that violates the requirements of the CSPA. In support of
this argument, petitioners cite N.J.S.A. 18A:36A-7, which states
that charter schools shall "be open to all students on a space
available basis." They also cite N.J.S.A. 18A:36A-8, which
provides that charters must give preference to local students,
priority to siblings, and enroll a cross section of the community's
school-age population, "including racial and academic factors."
Petitioners argue that they alleged sufficient facts to show
that the plan's enrollment process violates the enrollment
mandates in the CSPA. The ALJ did not, however, address the merits
of this claim. Instead, the ALJ decided that the claim could not
be considered because petitioners failed to name indispensable
parties.
An indispensable party is one who has "an interest inevitably
involved in the subject matter before the court and a judgment
cannot justly be made between litigants without either adjudging
or necessarily affecting the absentee's interest." Allen B. Du
Mont Labs., Inc. v. Marcalus Mfg. Co., 30 N.J. 290, 298 (1959).
The ALJ stated that, "Under this standard, it is readily apparent
that these affected charter schools have a clear stake in this
13 A-5351-14T3
litigation, and that the rights that petitioners seek to vindicate,
would, in part, require an order directing that the charter schools
comply with N.J.S.A. 18A:36A-7 and N.J.S.A. 18A:36A-8."
The ALJ determined that without the participation of the
unnamed charter schools, complete relief could not be granted. The
Commissioner adopted the ALJ's findings and conclusion on this
issue. We conclude that the ALJ and the Commissioner correctly
found that the unnamed charter schools whose enrollment processes
were at issue were indispensable parties to the dispute.
These organizations clearly have a stake in the resolution
of the claims regarding their enrollment plans. Because
petitioners had not joined these organizations in the
administrative action, the ALJ and the Commissioner correctly
found that petitioners' claim regarding the charter school
enrollment process in the "One Newark Plan" could not be
considered.
We therefore conclude that in addition to correctly
dismissing the claims in count three as untimely, the ALJ and the
Commissioner correctly determined that the claim regarding the
alleged violation of N.J.S.A. 18A:36A-4(b) failed as a matter of
law, and the claim regarding the alleged unlawful enrollment plan
for charter schools could not be considered because petitioners
failed to name indispensable parties.
14 A-5351-14T3
V.
Petitioners also claim that the "One Newark Plan" was a
"feeble attempt to address and ameliorate" what petitioners allege
is the de facto segregation of the Newark public schools on the
basis of race, color, ancestry, and national origin. Petitioners
allege that such de facto segregation violates the New Jersey
Constitution.
Among the other relief requested in this action, petitioners
sought a remedial plan to address the alleged unconstitutional de
facto segregation of the Newark public schools. They sought a
mandate requiring the inclusion of predominantly-white Essex
County suburban school districts within a county-wide or regional
plan "that would effectively desegregate" the Newark public school
system.
The ALJ dismissed this claim because petitioners failed to
name indispensable parties, specifically, the Commissioner, the
State Board, and the Essex County suburban school districts that
would be affected by such a remedial order. The Commissioner
adopted the ALJ's decision on this issue.
On appeal, petitioners argue that the Commissioner, State
Board, and potentially-affected suburban school districts would
not be indispensable parties until there has been a finding of
unconstitutional de facto segregation of the Newark schools. We
15 A-5351-14T3
cannot agree. We affirm the dismissal of this claim substantially
for the reasons stated by the ALJ in her initial decision, which
was adopted by the Commissioner.
As the ALJ noted, the petition does not merely treat the
Commissioner as a decision-maker. It asserts a claim against the
Commissioner, alleging that the Commissioner has not met his
statutory and constitutional obligation to desegregate the Newark
public schools. Furthermore, it is well established that only the
Commissioner has the power to "cross district lines to avoid
'segregation in fact.'" Jenkins v. Morris Twp. Sch. Dist., 58 N.J.
483, 501 (1971) (quoting Booker v. Bd. of Educ., 45 N.J. 161, 168
(1965)). Thus, the Commissioner is an indispensable party to any
claim in which a party seeks a multi-district, remedial order
addressing alleged de facto segregation of a district's schools.
We reject as entirely without merit any suggestion that the
Commissioner's interest would only involve the remedy for the
alleged de facto segregation of the Newark schools. Clearly, the
Commissioner would have an interest in any findings of the relevant
facts, as well as determining whether a remedy is required.
Moreover, the potentially-affected Essex County suburban
school districts also are indispensable parties to the claim of
de facto segregation of the Newark schools. As we have explained,
petitioners are seeking to create a regional, county-wide school
16 A-5351-14T3
system that would include the suburban school districts in Essex
County. As the ALJ stated in her decision:
Regionalization county-wide would implicate
the delivery of educational services to each
and every public school student in Essex
County. A failure to join each Essex County
school district would plainly impede the
ability of these districts to protect their
interests. See R. 4[:]28-1(a). Moreover, any
order directing such desegregation would call
upon the neighboring districts to take the
steps needed to effectuate such a broad
ranging and monumental change in the delivery
of educational services; to include a
potential consolidation of staff, school
buildings, equipment, and administrative
services. Without the participation of these
districts, "complete relief could not be
accorded among those already parties." Ibid.
We therefore conclude that the ALJ and the Commissioner
correctly decided to dismiss the claim of de facto segregation
because petitioners failed to name the Commissioner and the
affected suburban school districts as indispensable parties. For
essentially the same reasons, the State Board should also have
been named as a party.
We note that in her decision, the ALJ found that only three
petitioners had standing to raise claims that the "One Newark
Plan" violated the right to a thorough and efficient education
under the New Jersey Constitution. These petitioners were the
parents of three students who had attended public schools that
were closed under the "One Newark Plan."
17 A-5351-14T3
The ALJ nevertheless found that these petitioners had not
alleged specific facts to show that the education of the three
students had been disrupted or otherwise impaired by their
assignments to other schools. The ALJ therefore concluded that the
claims relating to these three students were not justiciable
because they would essentially require the Commissioner to render
an advisory ruling.
In view of our decision affirming the dismissal of
petitioners' claims on other grounds, we need not determine whether
the other petitioners had standing to assert claims that the "One
Newark Plan" violates the students' rights to a thorough and
efficient education, or whether the claims of the three parents
found to have standing are justiciable.
Affirmed.
18 A-5351-14T3