                                NOT FOR PUBLICATION WITHOUT THE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-0368-18T2

W.M., on behalf of a
minor child, M.M.,

          Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE
BOROUGH OF BRADLEY BEACH,
MONMOUTH COUNTY,

     Respondent-Respondent.
_________________________________

                    Argued October 10, 2019 – Decided June 5, 2020

                    Before Judges Fuentes and Mayer.

                    On appeal from the New Jersey Commissioner of
                    Education.

                    W.M., appellant, argued the cause pro se.

                    Daniel R. Roberts argued the cause for respondent
                    Bradley Beach Board of Education (Kenny, Gross,
                    Kovats & Parton, attorneys; Michael J. Gross, of
                    counsel; Daniel R. Roberts, on the brief).
            Joan M. Scatton, Deputy Attorney General, argued the
            cause for respondent Commissioner of Education
            (Gurbir S. Grewal, Attorney General, attorney; Donna
            Arons, Assistant Attorney General, of counsel; Joan M.
            Scatton, on the statement in lieu of brief).

PER CURIAM

      Appellant W.M. appeals from the final decision of the Commissioner of

the Department of Education that upheld respondent Bradley Beach Board of

Education's decision to decline to pay for his son M.M.'s tuition to attend Shore

Regional High School (Shore Regional). We affirm.

      Respondent has a send-receive arrangement that permits its resident

eighth grade students to attend either Asbury Park High School or Neptune High

School at no cost to the students or their family. A student may also attend the

performing arts programs at Red Bank Regional High School (Red Bank),

provided he or she is accepted on an individual basis. Appellant's son M.M.

applied to attend Red Bank but was not accepted. In the interest of enhancing

his son's education in dance, appellant enrolled M.M. in Shore Regional and

requested respondent to pay his tuition.

      Respondent denied appellant's request in a letter dated April 27, 2017.

Respondent noted the school district's long term send-receive relationship with

Neptune High School as the basis for the decision. Respondent also explained

that there was no unique program offered at Shore Regional, and there are no
                                                                         A-0368-18T2
                                       2
unique . . . circumstances [relating] to [M.M.]" to legally sustain such payments.

Appellant nevertheless enrolled M.M. at Shore Regional as a freshman for the

2017-2018 school year. On July 20, 2017, appellant filed a "Verified Petition

with the [Commissioner]" challenging respondent's refusal to pay his son's

tuition at Shore Regional.      The case was transferred to the Office of

Administrative Law for an evidentiary hearing before an administrative law

judge (ALJ).

      The matter came before the ALJ on the parties' cross-motions for summary

decision. As framed by the ALJ, the sole issue in this case is whether appellant

is entitled to reimbursement for the unilateral out-of-district placement of his

son pursuant to N.J.S.A. 18A:38-15, which provides:

            Any board of education not furnishing instruction in a
            particular high school course of study, which any pupil
            resident in the district and who has completed the
            elementary course of study provided therein may desire
            to pursue, may, in its discretion, pay the tuition of such
            pupil for instruction in such course of study in a high
            school of another district.

            [(Emphasis added).]

      In an Initial Decision dated June 26, 2018, the ALJ concluded respondent

had not abused its discretionary authority under N.J.S.A. 18A:38-15 when it

declined to pay M.M.'s tuition at Shore Regional. After reviewing the parties'

exceptions to the ALJ's Initial Decision, the Commissioner concurred with the
                                                                          A-0368-18T2
                                        3
ALJ's findings and adopted his legal conclusion. The Commissioner expressly

rejected appellant's claim that respondent "acted in bad faith by refusing to pay

for M.M. to attend Shore Regional, while at the same time paying for other

Bradley Beach students to attend the dance program at Red Bank Regional."

      Our review of an administrative agency's action is limited.           In re

Herrmann, 192 N.J. 19, 27 (2007). An administrative agency's decision will be

affirmed "unless there is a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record." Id. at 27-28. Further,

the following "three channels of inquiry" guide our review of an administrative

agency's decision:

            (1) whether the agency's action violates express or
            implied legislative policies, that is, did the agency
            follow the law; (2) whether the record contains
            substantial evidence to support the findings on which
            the agency based its action; and (3) whether in applying
            the legislative policies to the facts, the agency clearly
            erred in reaching a conclusion that could not reasonably
            have been made on a showing of the relevant factors.

            [Id. at 28 (citing Mazza v. Bd. of Trs., 143 N.J. 22, 25
            (1995)).]

      "If the agency decision satisfies these criteria, we are bound to give

substantial deference to the agency's fact-finding and legal conclusions, while

acknowledging the agency's 'expertise and superior knowledge of a particular

field.'" Twp. Pharmacy v. Div. of Med. Assistance & Health Servs., 432 N.J.
                                                                          A-0368-18T2
                                        4
Super. 273, 284 (App. Div. 2013) (quoting Circus Liquors, Inc. v. Governing

Body of Middletown Twp., 199 N.J. 1, 10 (2009)).

       Pursuant to N.J.S.A. 18A:38-1, any individual under the age of twenty

who is domiciled within a school district is entitled to attend that district's public

school without paying tuition. However, a board of education's decision to pay

for a student's out-of-district tuition is a discretionary decision.        N.J.S.A.

18A:38-15. Our courts hold that a discretionary decision by a board of education

"is entitled to a presumption of correctness and will not be upset unless there is

an affirmative showing that such a decision was arbitrary, capricious or

unreasonable." Parsippany-Troy Hills Educ. Asso v. Bd. of Educ., 188 N.J.

Super. 161, 167 (App. Div. 1983) (emphasis added) (quoting Thomas v. Morris

Tp. Bd. of Ed., 89 N.J. Super. 327, 332 (App. Div. 1965)).

      Based on this well-settled standard of review, we discern no legal basis to

disturb the Commissioner's August 8, 2018 final decision.

      Affirmed.




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