                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2381-18T2

BOARD OF EDUCATION
OF THE TOWNSHIP OF MINE
HILL, MORRIS COUNTY,

         Petitioner-Appellant

v.

BOARD OF EDUCATION
OF THE TOWN OF DOVER,
MORRIS COUNTY,

     Respondent-Respondent.
____________________________

                   Argued February 12, 2020 – Decided March 10, 2020

                   Before Judges Koblitz, Whipple and Gooden Brown.

                   On appeal from the New Jersey Commissioner of
                   Education, Docket No. 60-3/17.

                   Marc Howard Zitomer argued the cause for appellant
                   (Schenck Price Smith & King, LLP, attorneys; Marc
                   Howard Zitomer, on the brief; Sandra Calvert Nathans,
                   on the briefs).
            John E. Croot argued the cause for respondent Board of
            Education of the Town of Dover (Adams Gutierrez &
            Lattiboudere, attorneys; John E. Croot, on the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent Commissioner of Education (Jaclyn
            Michelle Frey, Deputy Attorney General, on the
            statement in lieu of brief).

PER CURIAM

      Petitioner Board of Education of the Township of Mine Hill appeals from

a January 14, 2019 final agency decision by the New Jersey Commissioner of

Education, Dr. Lamont O. Repollet, denying approval of its settlement

agreement with respondent Board of Education of the Town of Dover. In the

settlement agreement, the parties sought a modification of their sending -

receiving relationship so that petitioner's seventh and eighth grade students

would be educated in the Mine Hill School District (Mine Hill) but return to the

Dover School District (Dover) for high school.      No change to the parties'

relationship as to ninth through twelfth graders was sought. If approved, the

transition phase would have begun the following school year.

      The Commissioner denied modification of the parties' relationship due to

the substantial negative effect on the racial composition of Dover Middle School

and the education of the current seventh grade Mine Hill students who would

have to transfer to Mine Hill for eighth grade, only to return to Dover the

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                                       2
following year for high school. Given our discretionary standard of review, we

affirm.

      Since 1963, petitioner and respondent have had a sending-receiving

relationship in which Mine Hill students in grades seven through twelve are

educated in Dover. As the sending district, petitioner pays respondent for each

student. In 1998, petitioner sought a limited severance of its sending-receiving

relationship to allow its seventh and eighth graders to be educated in Mine Hill.

The Commissioner denied the petition.

      Pursuant to N.J.S.A. 18A:38-13, which requires "the district seeking to

sever the relationship . . . [to] prepare and submit a feasibility study, considering

the educational and financial implications . . . the impact on the quality of

education . . . and the effect on the racial composition . . . of the [sending and

receiving] districts," in September 2016, petitioner commissioned Consulting

Services Associates (CSA) to perform a study. Using 2015-2016 data, CSA

reported that the proposed modification would have caused a 4.2% increase in

the proportion of minority students at Dover Middle School in seventh and

eighth grade, from 91.1% to 95.3% minority. CSA concluded that "there would

be no significant negative impact to educational programs, racial/ethnic




                                                                            A-2381-18T2
                                         3
balances, enrollments, or finances in either district should the sending-receiving

relationship that currently exists . . . be modified."

      After the results of the study were released to the public in January 2017,

petitioner conducted a survey of both districts' constituents to gauge their

interest in altering the sending-receiving relationship. Of the 164 people who

responded, seventy-two percent stated they favored seventh and eighth grade

Mine Hill students being educated in their own district.

      In March 2017, petitioner filed a petition of appeal requesting the

Commissioner's approval to modify the sending-receiving relationship as to

seventh and eighth graders only. The matter was transmitted to the Office of

Administrative Law as a contested case, but before it could be heard on the

merits, the parties reached a settlement. The Administrative Law Judge (ALJ)

issued an initial decision approving the settlement agreement, in which the

parties agreed that beginning in the 2018-2019 term, seventh and eighth grade

Mine Hill students would be educated in their own district.

      The Commissioner rejected the ALJ's initial decision due to the parties'

failure to follow procedural requirements. Pursuant to N.J.A.C. 6A:3-6.1, he

directed them to allow for a public comment period on the agreed-upon proposal.

Of the seventeen comments the Commissioner received, three individuals


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                                         4
favored the change and fourteen opposed it. The opponents were primarily

concerned with the one-year transition plan.      Petitioner agreed with those

concerns and, although contrary to the terms of its settlement agreement,

requested the Commissioner to impose a "phase-in transition over two school

years instead of making the Mine Hill students, who currently attend Dover

Middle School, return to the [Mine Hill] school for their [eighth] grade." It

sought to delay implementation of the settlement agreement from September

2018 to September 2019. In contrast, respondent argued that "[t]here is no basis

upon which to modify the terms of the settlement."

      In May 2018, the Commissioner requested the parties to submit updated

student data. After considering the feasibility study, the parties' submi ssions

and settlement agreement, the public comments, and the updated data, he issued

a final decision, finding the racial impact unacceptable.        He noted that

implementing the settlement agreement in the upcoming school year was

"impractical and would hinder the continuity of education" of the current

seventh graders who would have to transition to Mine Hill for eighth grade

before returning to Dover for high school. He denied "the parties' proposed

settlement agreement . . . due to the substantial negative impact severance would

have on the racial composition of Dover [Middle School] and the substantial


                                                                        A-2381-18T2
                                       5
negative impact that the transition plan would have on the quality of the

education for Mine Hill's seventh grade class."

      Our review of a final decision from an administrative agency is limited.

In re Adoption of Amendments to Ne., Upper Raritan, Sussex Cty. & Upper Del.

Water Quality Mgmt. Plans, 435 N.J. Super. 571, 582 (App. Div. 2014). "A

court may reverse only if it 'conclude[s] that the decision of the administrative

agency is arbitrary, capricious, or unreasonable, or is not supported by

substantial credible evidence in the record as a whole.'" Ibid. (alteration in

original) (quoting J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J.

Super. 516, 521 (App. Div. 2000)). We ask three questions in our limited

review:

            (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 583 (quoting Mazza v. Bd. of Trs., 143 N.J. 22,
            25 (1995)).]

"We accord a strong presumption of reasonableness to such decisions and do not

substitute our judgment for the wisdom of agency action if that action is


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                                       6
statutorily authorized and not arbitrary or unreasonable." A.M.S. ex rel. A.D.S.

v. Bd. of Educ. of Margate, 409 N.J. Super. 149, 159 (App. Div. 2009). We are,

however, not "bound by the agency's interpretation of a statute or its

determination of a strictly legal issue." Ardan v. Bd. of Review, 231 N.J. 589,

604 (2018) (quoting US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)).

Nonetheless, we must give "great deference" to an agency's interpretation of a

statute it is charged with enforcing. N.J. Ass'n of Sch. Adm'rs v. Schundler, 211

N.J. 535, 549 (2012) (quoting N.J. Soc'y for the Prevention of Cruelty to

Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008)).

      When granting a change in designation or allocation, the Commissioner

must consider "the effect on the racial composition of the pupil population of

each of the districts." N.J.S.A. 18A:38-13. Our Supreme Court recognizes that

"[s]tudents attending racially imbalanced schools are denied the benefits that

come from learning and associating with students from different backgrounds,

races, and cultures." In re Petition for Authorization to Conduct a Referendum

on Withdrawal of N. Haledon Sch. Dist. from the Passaic Cty. Manchester Reg'l

High Sch. Dist., 181 N.J. 161, 178 (2004). The Court has affirmed that a nine

percent decrease in the overall white population of a regional high school district

"was not a 'negligible impact.'"     Id. at 164-65 (quoting In re Petition for


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                                        7
Authorization to Conduct a Referendum on the Withdrawal of N. Haledon Sch.

Dist. from the Passaic County Manchester Reg'l High Sch. Dist., 363 N.J. Super.

130, 139 (App. Div. 2003)). The "precise point when a thorough and efficient

education is threatened by racial imbalance" is, however, "not really possible to

establish." Id. at 183.

         The Commissioner found that of the 509 seventh and eighth grade students

at Dover Middle School, forty-three students were from Mine Hill. Thirty-eight

of the seventh and eighth graders were white: twenty-one from Dover and

seventeen from Mine Hill. Relying on Board of Education of Englewood Cliffs

v. Board of Education of Englewood, 257 N.J. Super. 413, (App. Div. 1992),

aff'd 132 N.J. 327, cert. denied, 510 U.S. 991 (1993), the Commissioner

determined that the loss of these seventeen white Mine Hill students amounted

to a reduction of about three percent in the proportion of white students to the

total school population, and a substantial forty-five percent gross reduction of

white students at Dover Middle School in the 2017-2018 and 2018-2019 school

years.

         In Englewood Cliffs, our court affirmed the State Board's adoption of the

ALJ's recommendation to deny the termination of the parties' sending-receiving

relationship. 257 N.J. Super. at 422. The ALJ found that although the "drop in


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                                         8
the overall proportion of white students . . . would make a difference of 1.6%,

seemingly a negligible amount," if severance was granted, the fifteen white

students who would no longer attend the district out of a total of ninety-four

white students presently in the district, constituted sixteen percent of the total

population of white students. Id. at 439. The State Board explained, "[T]his

[decrease] might not in itself constitute a substantial negative impact . . . .

However, N.J.S.A. 18A:38-13 requires that any determination with respect to a

requested change in designation must be based upon consideration of 'all the

circumstances.'" Id. at 447. Given that "[a] loss of [forty-five] percent of the

white population at Dover is significantly higher in magnitude than the [sixteen]

percent loss" in Englewood Cliffs, the Commissioner found he could not

approve a limited severance.

      Although petitioner asserts this matter is distinguishable from Englewood

Cliffs because, unlike here, the petitioner there was motivated by racial

prejudice when seeking to terminate its sending-receiving relationship, our court

has explained that "a particularized finding of intentional discrimination is not

a prerequisite for state remedies for racial imbalance." Id. at 472. In relying on

Englewood Cliffs, the Commissioner did not violate legislative policy, but




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                                        9
rather made a reasonable finding supported by substantial evidence from the

record. See In re Adoption of Amend., 435 N.J. Super. at 582.

     The    Commissioner's   finding     was   not   arbitrary,   capricious,    or

unreasonable.

     Affirmed.




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